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-  id 

A 

SUMMARY 

■y  OF    THE 

LAW   OF    CONTRACTS. 


BY 

C.   C.   LANGDELL, 

DANE    PROFESSOR    OF    LAW    IN    HARVARD    UNIVERSITY. 


SECOND    EDITION. 


BOSTON: 
LITTLE,    BROWN,   AND    COMPANY. 

1880. 


r 


Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

C.     C.     LANGDKI.L, 

In  the  Office  of  the  Librarian  of  Congress,   at  Washington. 


University  I'kess: 
John  AVilson  and  Son,  Cambridge. 


I 


PREFACE    TO    THE    SECOND    EDITION. 


The  following  pages  were  first  published  as  a 
supplement  to  the  second  edition  of  the  writer's 
collection  of  Cases  on  Contracts.  It  was  for  that 
purpose  that  they  had  been  written,  and  there  was 
then  no  thought  of  issuing  them  in  a  separate  form. 
It  was  soon  found,  however,  that  many  persons  who 
wanted  the  Summary  did  not  care  for  the  Cases,  and 
hence  the  publishers  felt  compelled  to  furnish  the 
former  separately  in  some  shape  ;  and  as  it  was  not 
fit  to  be  sold  separately  in  the  form  in  which  it  was 
first  published,  they  decided  to  republish  it  in  its 
present  style. 

It  must  be  confessed  that  the  title-page  does  not 
give  a  very  correct  idea  of  the  contents  of  the  vol- 
ume. On  the  one  hand,  though  called  a  Summary, 
it  contains  a  much  fuller  development  of  the  topics 
embraced  in  it  than  is  contained  in  any  treatise  with 
which  the  writer  is  acquainted.  On  the  other  hand, 
though  called  a  Summary  of  the  Law  of  Contracts, 
it  embraces  only  a  part  of  the  subject  of  Contracts, 
namely,  so  much  of  it  as  is  covered  by  the  Cases 
before  referred  to.     While,  therefore,  a  part  of  the 


670395 


iv  PREFACE  TO   THE   SECOND  EDITION. 

title  leads  the  reader  to  expect  less  than  he  will  find, 
the  remainder  of  it  leads  him  to  expect  more.  Still, 
the  writer  has  been  unable  to  find  a  title  which 
seemed  less  open  to  objection.  As  to  the  scope  of 
the  work,  it  seemed  impossible  to  indicate  its  limits 
in  a  title-page.  As  to  the  term  Summary,  it  has  at 
least  the  recommendation  of  not  leading  the  reader 
to  expect  too  much ;  and  it  was  suggested  by  the 
fact  that,  in  its  relation  to  the  Cases  to  which  it  was 
designed  as  a  supplement,  the  work  was  a  Summary ; 
that  is,  it  was  a  concise  statement  and  exposition 
of  the  doctrines  involved  in  those  cases. 

The  scope  of  the  work  is  sufficiently  indicated  by 
the  Table  of  Contents,  but  a  reference  to  the  volume 
of  cases  will  render  it  still  more  clear.  The  cases 
are  arranged  in  three  chapters,  entitled  respectively 
Mutual  Consent,  Consideration,  and  Conditional 
Contracts.  The  following  titles  in  the  Summary, 
namely,  Acceptance  of  Offer,  Bidding  at  Auction, 
Mutual  Consent,  Offer,  and  Revocation  of  Offer, 
correspond  to  Chapter  I.  of  the  Cases ;  the  title 
Consideration  in  the  Summary  corresponds  to  Chapter 
II.  of  the  Cases  ;  the  following  titles  in  the  Summary, 
namely,  Concurrent  Conditions,  Conditions,  Condi- 
tions Precedent,  Conditions  Subsequent,  Demand, 
Dependent  and  Independent  Covenants  and  Prom- 
ises, Notice,  and  Performance  of  Conditions,  corre- 
spond to  Chapter  III.  of  the  Cases ;  and  the  two 
remaining  titles  in  the  Summary,  namely,  Debt  and 
Unilateral  and  Bilateral  Contracts,  treat  of  questions 


PREFACE  TO  THE   SECOND   EDITION.  v 

which  are  common  to  all  the  subjects  to  which  the 
Cases  relate. 

Since  the  book  as  a  whole  was  to  be  only  a  frag- 
ment, it  was  not  thought  worth  while  to  divide  it 
into  chapters  and  sections,  to  be  arranged  in  consec- 
utive order,  but  the  easier  method  was  adopted  of 
treating  the  different  subjects  separately  and  inde- 
pendently, and  arranging  them  in  alphabetical  order. 
The  arrangement  of  the  subjects,  therefore,  indicates 
nothing  as  to  the  order  in  which  they  should  be 
read,  and  every  reader  must  exercise  his  own  taste 
and  judgment  as  to  the  order  in  which  he  will  read 
them,  or  whether  he  will  read  them  in  any  order. 

As  the  Summary  was  written  for  the  sake  of  the 
Cases,  and  the  two  were  designed  to  be  companions, 
the  Cases  constitute  the  chief  authority  cited  in  the 
Summary.  When  other  authorities  are  cited,  it  is 
for  some  special  purpose,  it  being  no  part  of  the 
writer's  object  to  make  a  collection  of  authorities 
upon  the  subjects  discussed.  For  the  same  reason, 
the  cases  are  constantly  cited  and  discussed  without 
any  statement  of  them,  it  being  always  assumed 
that  the  reader  has  them  before  him,  and  that,  if  he 
is  not  already  familiar  with  them,  he  will  make 
himself  so. 

The  present  edition  differs  but  little  from  the  first 
edition,  except  in  form.  Even  in  the  few  instances 
in  which  the  writer's  views  have  undergone  a  change 
or  modification  since  the  first  edition  was  printed, 
the  text  has  generally  been  left  as  it  was  first  written, 


VI  PREFACE   TO    THE   SECOND   EDITION. 

and  the  change  of  view  has  been  indicated  by  a  note. 
Instances  of  this  will  be  found  at  §§  48,  60,  77,  94, 
177.  In  one  instance  only  the  text  has  been  ma- 
terially changed,  namely,  in  the  last  paragraph  (186) 
of  the  first  edition,  which  in  the  present  edition  has 
been  rewritten  and  expanded  into  two  paragraphs 
(186,  187). 

Cambeidge,  June,  1880. 


CONTENTS. 


Faob 

Acceptance  of  Offer 1 

Bidding  at  Auction 24 

Concurrent  Conditions 26 

Conditions 31 

Conditions  Precedent 37 

Conditions  Subsequent 53 

Consideration 58 

1.  Adequacy  of  Consideration 67 

2.  Consideration  and  Motive 77 

3.  From  whom  the  Consideration  must  move  .     .  79 

4.  To  whom  the  Consideration  must  move  ...  80 

5.  Mutual  Consent  as  an  Element  of  Consideration  82 

6.  Relation  in  Time  of  the  Consideration  to  the 

Promise 87 

7.  Moral  Consideration 89 

8.  Consideration  Void  in  Part 101 

9.  Mutual  Promises 102 

10.  Executed  Consideration 112 

Debt 123 

Demand 131 

Dependent   and   Independent   Covenants    and 

Promises 134 


vni  CONTENTS. 

Mutual  Consent 193 

Notice 195 

Offer 197 

Performance  of  Conditions 205 

Revocation  of  Offer 240 

Unilateral  and  Bilateral  Contracts      .    .    .  248 


INDEX .255 


TABLE   OF   CASES   CITED. 


A. 

Section 
Adams  v.  Lindsell  10,  14,  15,  151, 
181 
Alcock  V.  Blofield  .  .  .  .  lOi 
Alliance  Bank  v.  Broom  .  .  79 
Anonymous  (Cowp.  128)  .  48 
"  (cited  in  Dyer, 

272)     ...      94 
(4  Leon.  50)    .      33 
"  (2  Lil.  Pr.  Reg. 

235)     ...     150 
(Palm.  160)      .       6(3 
(2  Roll.  238)    .     171 
"  (ISid.  31,  pl.9)       88 

(Y.  B.  18Ed\v. 
IV.  18  a,  pi. 
23)  ...     .     150 
"  (Y.   B.  1   Hen. 

VII.  5  a,  pi. 
8)  ....     150 
"  (Y.  B.  15  Hen. 

VII.  10  b,  pi. 
7)  126,  133,  140, 
144 
Armitage  v.  Insole  ....  41 
Atkins  V.  Hill  ....  71,  75 
Atkinson  v.  Settree  ...  54 
Atkinson  v.  Smith  ....  115 
Austin  V.  Jervoyse  .  .  .  23,  171 
Averill  v.  Hedge     .     14,  153,  154 


Bach  V.  Owen 112 

Baily  v.  Croft 84 


Sectioh 


22, 


Bainbridge  v.  Firmstone 
Ball  V.  Peake  .     . 
Banes's  Case  .     . 
Bankart  v.  Bowers 
Banks  and  Thwaits'  Case 
Barber  v.  Fox     . 
Barker  v.  Halifax 
Barnard  v.  Simons 
Barnes  v.  Hedley 
Barton  v.  Shurley 
Batterbury  v.  Vyse 
Baxter  v.  Read   , 
Beany  v.  Turner 
Beaumont  v.  Reeve 
Beecher  v.  Conradt 
Behn  v.  Burness     28,  33, 
Beresford  v.  Goodrouse 
Best  V.  Jolly  .... 
Bettini  v.  Gye     .     .     . 
Bettisworth  v.  Campion 
Bid  well  V.  Catton    .     . 
Binnington  v.  Wallis   . 
Birks  V.  Trippet      .     . 
BlackM-ell  v.  Nash  .    140^ 
Blandford  v.  Andrews . 
Boone  v.  Eyre     .     .     38, 
Bornmann  v.  Tooke     . 
Bosden  v.  Thinne     .     . 
Boston   &  Maine   R.   R 
Bartlett      .     .     .     152, 
Bourne  v.  Mason 
Boj-dell  V.  Drummond 
Bradburne  v.  Bradburne 
Bradbury  v.  Morgan    . 
Bradford  v.  Roulston  . 
Bradford  v.  Williams  168, 167, 168 
Bradley  v.  Toder    ....     150 


64 

174 

.      56 

39,  119 

.     104 

48,56 

92,94 

.      54 

68,  71,  76 

92,  94 

36,  171 

.      94 

141,  144 

.      78 

13G, 176 

112,  119 

.     150 

.      80 

.     162 

119,  141 

.      58 

.      78 

.     104 

144 

171 

112 

177 


143, 


111, 
164, 


92.94 

V 

178,  179 
62 
73 
80 
4 
93 


TABLE   OF  CASES   CITED, 


Bragg  V.  Nightingale  .     .   37,  116 
Braunstein  v.  The  Acciden- 
tal Death  Ins.  Co.    .     .      35,  36 
Bret  V.  J.  S.  and  Wife     .      54,  84 
British  and  American   Tel. 

Co.  V.  Colson  .  .  6,  14,  15,  152 
Brocas'  Case  ...  23,  140,  144 
Brooks  V.  Ball  ....  54,  66 
Bussey  v.  Barnett  ....     183 


Cad  well  v.  Blake     .    .     .   41,  113 

Cage  V.  Acton 44 

Caines  v.  Smith.  .  .  .  171,  172 
Callislier  v.  Bischoffsheim  .  57 
Callonel  v.  Briggs  22,  24, 118, 142, 


140 


140 


Campbell  v.  Jones 
Capen  v.  Barrows 
Carpenter  v.  Cresswell 
Carter  v.  Ring    .     . 
Case  of  an  Hostler 
Caton  V.  Dixon   .     , 
Christie  v-  Borelly  . 
Clarke  v.  Watson    . 
Clerke  v.  Child  .     . 
Clipsham  v.  Vertue 
Cock  V.  Curtoys 
Coggs  V.  Bernard    . 
Cole's  Case     .     .     , 
Cole  V.  Shallett  . 
Collins  V.  Gibbs  . 
Colston  V.  Carre 
Constable  v.  Cloberie 
Cook  V.  Wright  .     . 
X"Cooke  V.  Oxley  .    10, 
Coombe  v.  Greene  . 
Cort  V.  Ambergate,  &c 

way  Co.      .     . 
Cripps  V.  Golding 
Crisp  V.  Camel    . 
Crisp  and  Golding 
Crow  V.  Rogers  . 
Crowther  v.  Farrer 
Cunningham  v.  Morrell 
Cutler  V.  Southern  .    . 


D. 


144 

110,  129 

.     186 

110,129 

.     104 

.     104 

143,  144 
.  107 
36,  157 

.  150 
.  164 
.  164 
.  101 
.     150 

144,  164 
22,  70 
.      80 

164,  177 

57,  76,  79 

11,  178.  182 


Rail- 


41 


.  .  171 

.  .  80 

.  .  80 

.  .  80 

.  .  62 
55,  87,  88 

.  .  131 

.  .  150 


Dallman  v.  King     . 
Davidson  v.  Gwynne 


36 
164 


Davis  V.  Dodd  .  ...  78 
Dawson  v.  Dyer  ...  33,  38 
Dearborn  v.  Bowman  ...      78 

Deeks  v.  Strutt 75 

Dicker  v.  Jackson  122, 124,  145, 
164,  177 
.  9,  178,  181 
...  54 
...  94 
.  .  .  109 
...  186 
133,  147,  158 
.  14,  15,  152 


Dickinson  v.  Dodds 
Dixon  V.  Adams 
Docket  V.  Voyel 
Doughty  V.  Neal 
Dunham  v.  Gillis     . 
Dunliam  v.  Pettee  . 
Dunlop  V.  Higgins . 
Dunmore,  Countess  of,  v.  Al- 
exander   14,  16 

Dusenbury  v.  Hoyt     ...      72 
Dutton  V.  Poole  ....     62,  63 


E. 

Eastwood  V.  Kenyon  71,  74,  76,  79 
Eccleston  v.  Clipsham      .     .     186 


Edmonds'  Case 72 

Edwards  v.  Baugh  ...  50,  88 
Eliason  v.  Henshaw  ...  17 
Ellen  V.  Topp      ....  41,  177 

Elliott  V.  Blake 42 

England  v.  Davidson  ...  54 
Estrigge  and  Owles'  Case  69,  104 

Evans  v.  Powis 55 

Exchange  Bank  v.  Rice  .    .      63 


F. 

Ferry  v.  Williams  ....  170 

Field  V.  Dale 94 

Fillieul  V.  Armstrong  .     .     .  162 

Fitch  V.  Snedaker    ....  3 

Fletcher  v.  Pynsett     .    .    .  150 

FHght  V.  Reed 76 

Forth  V.  Stanton     ....  66 
Fothergill  v.  Walton   .       122,  166 

Franklin  v.  Miller   ....  128 


Freeman  v.  Taylor     164, 166,  167 
Freeth  v.  Burr 128 


G. 


Gable  v.  Morse  . 
Gale  V.  Golsbury 
George  v.  Harris 


150 

94 

186 


TABLE   OF   CASES  CITED. 


XI 


Gibbons  v.  Prewde  ....  144 
Gibbs  V.  Southam  ....  104 
Giles  V.  Giles  ...  23,  135,  185 
Glaliolm  V.  Hays  ....  33 
Glazebrook  v.  Woodrow  .  .  136 
Goodisson  v.  Nunn  .  .  .143,  145 
Gower  v.  Capper  .  .  .81,  141 
Grafton  v.  Eastern  Counties 

Railway  Co 33 

Grant  v.  Johnson    ....     122 

Graves  v.  Legg 33 

Gray's  Case 146 

Gray  v.  Gardner      ....      44 


H. 

Haigli  V.  Brooks 
Hall  V.  Cazenove 
Hall  V.  Flocton   . 
Harris's  Case 
Harris  v.  Ewer   . 
Harrison  v.  Cage 
Harrison  v.  Mitford 
Hart  V.  Miles 
Hatch  V.  Traj'es 
Havelock  v.  Geddes   110, 
Haverleigh  v.  Leightou 
Hawes  v.  Smith  .     . 
Hawkes  v.  Saunders 
Hayes  v.  Warren     . 
Hays  V.  Bickerstaffe 
Head  v.  Diggon  .     . 
Hebb's  Case .     .     . 
Henderson  v.  Stobart 
Henning's  Case  .     . 
Herring  v.  Dorell    . 
Hesketh  v.  Gray 
Hill  V.  Wade  .     .     . 
Hoare  v.  Rennie  .     . 
Hodge  V.  Va visor   . 
Holder  v.  Taylor  33,  116 
Holdipp  V.  Otway    .    35, 
Holmes  v.  Twist      .     . 
Holt  V.  Ward  Clarencieux 
Hopkins  v.  Logan 


14, 


54 
177 

55 
15,  17 

95 

82 
104 


128, 


50 

177 

.     150 

54,  70 

71,  75 

93,  96 

33,38 

10,  11 

6,  11,  14,  15 

88 

150 

54 

157 

104 

137,  164 

.      94 

140,  146 

171,  176 

.     150 

82 

50,  57,  93 


Hotham   v. 

East 

India 

Co. 

43, 
171 

Household 

Fire 

Ins.  Co 

V. 

Grant 

fi 

Howlet's  C 

ase    . 

94 

Hunlocke  v 

.  Blacklowe 

.38, 

110, 

129 

Hunt  V.  Ba 

te  . 

,    . 

.     . 

94 

Hunt  V.  Livermore . 
Hyde  v.  Wrench     . 


117 
18 


Ilsley  V.  Jewett 78 


Jackson  v.  Thornell  .  .  .  150 
.Janson  v.  Colomore  ...  94 
Jennings  v.  Brown  ....  77 
Jeremy  v.  Goochman  ...  94 
Jonassohn  v.  Young  .  164,  177 
Jones  V.  Ashburnham  56,  64,  77 
Jones  V.  Barkley  23, 127,  133, 143, 
171,  173.  176 
Judson  V.  Bowden  .  110,  116,  129 


K. 

Kane  v.  Hood 186 

Kaye  v.  Dutton 93 

Kelly,  In  the  matter  of    .     .    155 

Kennedy  v.  Lee 9 

Kent  V.  Pratt 54 

King  V.  Atkins 150 

King  V.  Mill 74 

King  V.  Sears      ...    67,  80,  97 
Kingston  v.  Preston     23,  127,  143 


Laird  v.  Pim 176 

Lamb's  Case 157 

Lampleigh  i?.  Brathwait  92,  94,  95 
Lancashire  v.  Killingworth  .  22, 
171,  174,  176 
Large  v.  Cheshire  .  22,  171,  176 
Lea  V.  Exelby  23,  141,  142,  144, 
174 
Lee  V.  Muggeridge  .  71,  76,  79 
Littlefield  v.  Shee  ...  71,  78 
Llewellyn  v.  Llewellyn  .  .  88 
Lock  V.  Wright  ....  22,  117 
Longridge  v.  Dorville  .  54,  56,  88 
Loring  v.  City  of  Boston  154,  155 
Lowber  v.  Bangs  ....  164 
Lowe  and  Kirby     ....     104 

Loyd  r.  Lee 56 

Lynn  v.  Bruce    ....  88 


xu 


TABLE   OF   CASES   CITED. 


M. 

MacAndrew  v.  Chappie   .     . 
Mactier  v.  Frith    7,  8,  14,  15, 

Makin  v.  Watkinson 
March  v.  Pigott  .    . 
Marsden  v.  Iiloore   . 
Marsh  and  Rainsford 
Martin  i'.  Mitchell  . 
Martin  (•.  Smith  .     . 
Martindale  v.  Fisher    107, 141, 
Mason  v.  Harvey     .... 
Mattock  V.  Kinglake  124, 145, 

Mayne's  Case     .     .   171,  172, 
McCuUoch  V.  Eagle  Ins.  Co. 


36, 


Merrit  v.  Rane    . 
Meyer  v.  Haworth 
Mills  V.  Wynian 
Milner  v.  Field    . 
Moggridge  v.  Jones 
More  V.  Morecomb 
Morgan  v.  Birnie 
Morgan  v.  Gatli  . 
Morton  v.  Burn  .     , 
Morton  v.  Lamb  123, 133 
Munro  v.  Butt     .     .     • 


15 


143 


164 
152, 
153 
150 

89 
147 

94 

11 
170 
144 

33 
146, 
176 
173 

14, 
119 
142 

78 

74 
171 
117 
157 

36 
118 

56 
145 
165 


Nash  V.  Armstrong  ...  88 
Neale  v.  Ratcliff  .  .  33,  37,  40,  70 
Newson  v.  Smythies  ...  38 
Nichols  V.  Raynbred  .  .  81,  141 
Northrup  v.  Northrup  .     .   23,  133 


o. 


Offord  I'.  Davies      .     . 

,    , 

4 

Oldershaw  v.  King  .     . 

.     59 

79 

OHver  v.  Fielden     .     . 

33 

Oliverson  v.  Wood  .    . 

94, 

96 

Ollive  V.  Booker     .     ,    . 

28, 

33 

Payne  v.  Cave  ....  11,  19 
Payne  v.  Wilson  ...  59,  77 
Pearle  and  Edwards    .     .     92,  94 


Pecke  and  Mithwolde 
Peeters  v.  Opie    23,  125, 
144,  146,  171 
Phillips  V.  Clift  .     .     . 
Phillips  V.  Fielding  .     . 
Pickas  V.  Guile   .     .    . 
Plllans  V.  Van  Mierop 
Pool's  Case    .... 
Poole  V.  Hill  .     .     .    170 
Pordage  v.  Cole  23,  140, 


Potter  V.  Sanders 
Poussard  v.  Spiers 
Powle  V.  Haggar 
Price  V.  Easton  . 
Pust  V.  Dowie 


42 


.    104 

140, 141, 

,  174,  176 

,     .     109 

170,  174 

64,  68 

60,  79 

.     .     146 

174,  176 

143,  145, 

146,  147 

.  9,  14 

158,  162 

,    .    150 

,     .      62 

.    .      38 


R. 


Rae  V.  Hackett 41 

Raffles  V.  Wichelhaus .     .    .    148 
Ramsgate  V.  H.  Co.  v.  Golds- 
mid    154,  156 

Rann  v.  Hughes  ...  50,  75,  93 
Rawson  v.  Johnson  133,  143,  174 
Ravmond  v.  Minton     .     .     .     109 


Rajnay  v.  Alexander 
Read  v.  Baxter  .     . 
Reynolds  v.  Pinhowe 
Riches  and  Briggs  . 
Riggs  V.  Bullingham 
Ripley  v.  M'Clure    . 
Ritchie  v.  Atkinson 
Roberts  i'.  Brett 
Rolt  V.  Cozens    .     . 
Roper  t'.  Lendon 
Roscorla  v.  Tliomas 
Routledge  i'.  Grant 
Rumball  v.  Ball       . 


127 


41,  171 

.      64 

54,88 

64,  68,  70 

92,94 

.     171 

163,  177 

136,  177 

.     130 

33,  115 

.      93 

.  10,  17,  148 

.     .     .     104 


S V.  F 14,  15,  16, 151,  180 

Sandhill  i\  Jenny    ....       94 

Sands  v.  Clarke 172 

Saunders  v.  Johnson  .  .  .  186 
Scotson  V.  Pegg  .  .  54, 64,  84 
Seeger  v.  Duthie    .    .     .35,  164 

Selman  v.  King 104 

Semmes  v.  Hartford  Ins.  Co.  43 
Semple  v.  Pink  ....  69,  79 
Shadforth  v.  Higgin    .    .    .     167 


TABLE   OF   CASES   CITED. 


Xlll 


Shadwell  v.  Shadwell  .  54,  68,  84 
Shales  v.  Seignoret   140,  171,  174, 

176 
Shippey  v.  Henderson  .  .  72 
Short  V.  McCarthy  ....  73 
Short  V.  Stone  .  .  .  171,  172 
Sibthorp  v.  Brunei  23,  145,  146 
Sidenham  and  Worlington  .  94 
Simpson  v.  Crippin     .       164,  167 

Slade's  Case 48 

Slater  v.  Stone   .....       37 

Smart  v.  Chell 88 

Smith's  Case 64 

Smith  V.  Algar  ....  56,  80 
Smith  V.  Monteith  ...  54,  58 
Smith  V.  Wilson  ....  176 
Smyth  V.  Holmes  ....  88 
Spanish  Ambassador  v.  Gif- 

ford 125,  144 

Spencer  v.  Durant  ....  186 
Spiller  y.  Westlake  .  .  .  117 
St.  Albans,  Duke  of,  v.  Shore  158, 
159,  169,  170 
Standley  v.  Hemmington  .  170 
Staunton  v.  Wood  ....  134 
Stavers  v.  Curling  ...  88,  164 
Storer  v.  Gordon  23,  42,  122,  158, 

166 
Strangborough  and  Warner  81 
Street  v.  Blay  .  .  .  112,  119 
Stubbs  V.  Holywell  Railway 

Co 43 

Sturlyn  v.  Albany  .    .    48,  54,  66 


Tarrabochia  v.  Hickie  .  .  164 
Tayloe   v.   Merchants'  Fire 

Ins.  Co 14,  51,  119 

Terry  v.  Duntze  .  .  34,  131,  164 
Thomas  v.  Cadwallader  33,  108, 
116, 140,  150 
Thomas  v.  Thomas  .     60,  64 

Thompson  v.  Gillespy  .  .  119 
Thompson  v.  Leach  ...  2 
Thompson  v.  Noel  .  .  140,  177 
Thomson  v.  James    1,  4,  6,  11,  14, 

15,  16,  27, 151,  152, 178,  180,  181 
Thorpe's  Case  .  .  .  141,  144 
Thorpe  v.  Thorpe  112,  140,  141, 
144,  146,  176 
Thurnell  v.  Balbirnie  .  .  41,  157 
Tidey  v.  Mollett  38,  119,  157,  158 


Townsend  v.  Hunt .     . 

.     92.  94 

Traver  v. .     . 

.     .     54, 66 

Trewinian  v.  Howell 

.     .      75 

Trueman  v.  Fenton 

.     .      72 

Tully  V.  Howling     . 

.    .     163 

Turner  v.  Goodwin 

.   20,  142 

Tweddle  v.  Atkinson 

.     .       62 

u. 

Ughtred's  Case 146 


Valentine  v.  Foster  ...  78 
Vassar  v.  Camp  ...  14, 15,  17 
Victors  V.  Davies  ....  96 
Vivian  v.  Shipping  .  .  .  144 
Vyse  V.  Wakefield  ....     150 


W. 

Wade  V.  Simeon     ....      58 

Wallis  V.  Scott 104 

Ware  v.  Chappel  .  108,  138,  144 
Warlow  0.  Harrison  ...  19 
Waterhouse  v.  Skinner  .  .  174 
Watson  V.  Turner  ....      74 

Way  V.  Sperry 72 

Wells  V.  Calnan  .  .  42,  158,  169 
Wennall  v.  Adney  ...  71,  76 
Wheatley  v.  Low  ...  64,  68 
White  c.  Beeton  ....  114 
Wilks  V.  Smith  .  .  .  124,  145 
Whitehead  v.  Howard  .  .  73 
Wilkinson  v.  Byers  ...  64 
Wilkinson  v.  Oliveira  .  .  54,  70 
Williams  v.  Carwardine  .  .  3 
Williams  v.  Moor  ....  72 
Williamson  v.  Clements  .  54,  70 
Williamson  v.  Losh  ...  50 
Winstone  v.  Linn  ....  109 
Withers  v.  Reynolds  128, 137,  172 
Worsley  v.  Wood  ...  33,  157 
Wotton  V.  Cooke    ....     187 


Y. 

Young  V.  Ashburnham 


92 


SUMMARY 


OF 


THE   LAW   OF   CONTRACTS. 


ACCEPTANCE   OF   OFFER. 

1.  According  to  the  popular  apprehension  of  the 
term,  a  promise  is  the  act  of  the  promisor  alone ;  but 
in  truth  it  requires  also  an  act  of  the  promisee.  Before 
any  act  by  the  promisee,  the  so-called  promise  is  in 
law  only  an  offer,  called  by  the  Romans  a  pollicitation. 
It  is  not  until  it  is  accepted  by  the  promisee  that  it 
becomes  in  law  a  promise. ^  A  promise  is  in  this 
respect  like  a  gift  of  property,  which  is  commonly 
supposed  to  be  the  act  of  the  donor  alone,  but  which 
requires  the  acceptance  of  the  donee  to  pass  the  title 
to  the  property. 2 

2.  The  acceptance  of  an  offer,  however,  differs  ma- 
terially from  the  making  of  an  offer.  The  former 
requires,  it  seems,  a  mental  act  only ;  and  clearly  it 
does  not,  like  the  making  of  an  offer,  require  a  com- 
munication from  the  person  making  it  to  the  person 
to  whom  it  is  made.     Indeed,  it  is  well  settled  as  to 

1  Grotius,  Lib.  2,  c.  11,  §  14  ;  Pothier,  Traite  des  Obligations,  Part. 
1,  c.  1,  sect.  1,  art.  1,  §  2.  Lord  Stair,  as  cited  in  Thomson  v.  James, 
18  Dunlop,  1,  17-18,  Cas.  on  Contr.  125,  147,  is  contra. 

2  Grotius,  Lib.  2,  c.  6,  §  2. 

1 


2  ACCEPTANCE   OF   OFFER. 

a  gift  of  property  that  no  acceptance  by  the  donee 
need  be  proved  in  order  to  complete  the  gift ;  for,  as 
li  gift  is  presumptively  a  benefit  to  the  donee,  the  law 
will  presume  an  acceptance  of  it  by  hira  in  the  absence 
of  evidence  to  the  contrary.^  And  there  is  no  reason 
to  doubt  that  the  same  rule  is  applicable  to  a  promise 
made  as  a  gift,  though  no  such  question  can  arise  in 
our  law  as  to  an  ordinary  promise  not  under  seal, 
since  every  such  promise  requires  a  consideration  to 
5}iEE?ZLi.^  and  hence  can  never  constitute  a  gift.  As 
to  all  such  promises,  therefore,  there  must  be  a  phys- 
ical act  on  the  part  of  the  promisee  to  complete  them, 
namely,  giving  or  performing  the  consideration  ;  and, 
though  the  thing  specified  by  the  offerer  as  the  con- 
sideration of  his  proposed  promise  may  be  given  or 
done  without  accepting  the  offer,  yet  it  will  not  in 
that  case  be  given  or  done  as  the  consideration  (and 
hence  will  not  inure  as  the  consideration)  of  the  pro- 
posed promise.  Therefore,  though  the  acceptance  of 
an  offer  and  the  performance  of  the  consideration  ave 
different  things,  and  though  the  former  does  not  imply 
the  latter,  yet  the  latter  does  necessarily  imply  the 
former  ;  and,  ag^  the  want  of  either  is  fa,ta.l  to  the 
promise,  the  question  whether  an  offer  has  been  ac- 
cepted can  never  in  strictness  become  material  in  those 
cases  in  which  a  consideration  is  necessary ;  and  for 
all  practical  purposes  it  may  be  said  that  the  offer  is 
accepted  in  such  cases  by  giving  or  performing  the 
consideration. 

3,  Thus  the   public  offer  of  a  reward  for  the   dis- 
covery and  conviction  of  the  perpetrator  of  a  crime 
is  an  offer  to  any  person  who  will  accept  it  and  per- 
1  Thompson  u.  Lcacli,  2  Vent.  198,  203. 


ACCEPTANCE   OF   OFFER.  3 

form  the  consideration  ;  and  the  performance  of  the 
specified  services  will  be  prima  facie  evidence  of  a 
compliance  with  the  offer  in  both  respects  ;  but  it^ 
may  be  shown  not  to  have  been  a  compliance  with 
it  in  either  respect,  e.  g.  by  showing  that  the  services 
were  all  performed  in  ignorance  that  the  reward  had 
been  offered.  In  Fitch  v.  Snedaker  ^  it  appeared  that 
a  part  of  the  services  were  performed  in  ignorance 
that  the  reward  had  been  offered,  and  even  before 
it  was  offered,  and  therefore  that  the  consideration 
for  the  reward  had  not  been  performed,  i.  e.  not  the 
whole  of  it ;  but  the  performance  of  the  remainder 
of  the  services  after  the  offer  of  the  reward  became 
known  to  the  plaintiffs  would  probably  have  shown 
an  acceptance  of  the  offer,  though  that  fact  would 
not  have  been  material.  In  Williams  v.  Carwardine,^ 
the  finding  of  the  jury  showed  that,  though  the  plain- 
tiff had  fully  performed  the  services  specified  in  the 
offer,  she  had  neither  accepted  the  offer  nor  performed 
the  consideration ;  and  yet  it  was  held  (erroneously, 
serrible)  that  she  was  entitled  to  recover. 

4.  As  the  performance  of  the  consideration  is  what 
converts  an  offer  into  a  binding  promise,  it  follows 
that  the  promise  is  made  in  legal  intendment  at  the 
moment  when  the  performance  of  the  consideration 
is  completed.  It  also  follows  that  up  to  that  moment 
the  offer  may  either  be  revoked,  or  be  destroyed  by 
the  death  of  the  offerer,  and  the  offeree  thus  be  de- 
prived  of  any  compensation  for  what  he  has  done.^ 

1  38  N.  Y.  248,  Cas.  on  Contr.  118. 

2  4  B.  &  Ad.  621,  Cas.  on  Contr.  12. 

3  Offord  V.  Davies,  12  C.  B.  n.  s.  748,  Cas.  on  Contr.  33.  Bradbury 
V.  Morgan,  1  H.  &  C.  249,  cited  in  Offord  v.  Davies,  supra,  is  contra, 
but  it  must  be  deemed  erroneous. 


4  ACCEPTANCE   OF   OFFER. 

As  this  may  cause  great  hardship  and  practical  in- 
justice, ingenious  attempts  have  been  made  to  show 
that  the  offer  becomes  irrevocable  as  soon  as  perform- 
ance of  the  consideration  begins ;  ^  but  such  a  view 
seems  to  have  no  principle  to  rest  upon.  Besides, 
there  may  be  hardship  on  the  other  side  as  well ;  for 
the  offeree  may  at  any  stage  refuse  to  proceed  further 
in  performing  the  consideration,  or  he  may  die,  and 
then  the  offerer  will  confessedly  be  without  remedy. 
The  true  protection  for  both  parties  is  to  have  a 
binding  contract  made  before  performance  begins,  by 
means  of  mutual  promises  ;  and  if  they  neglect  this 
precaution,  any  hardship  that  they  may  suffer  should 
be  laid  at  their  own  doors.  It  may  be  urged  that 
the  offer  is  accepted  (and  thus  converted  into  a 
promise)  the  moment  the  performance  of  the  con- 
sideration begins  ;  and  though  the  promise  at  first  is 
not  binding  for  want  of  a  consideration,  yet,  being  a 
promise  and  not  an  offer,  it  is  irrevocable  ;  and  in  the 
event  of  the  consideration  being  afterwards  performed, 
it  will  become  binding.  Such  a  view,  however,  would 
be  fanciful  and  unsound.  It  does  not  follow  that  an 
offer  becomes  a  promise  because  it  is  accepted ;  it  may 
be,  and  frequently  is,  conditional,  and  then  it  does  not 
become  a  promise  until  the  conditions  are  satisfied;^ 
and  in  case  of  offers  for  a  consideration,  the  perform- 
ance of  the  consideration  is  always  deemed  a  con- 
dition. A  promise  must  have  a  consideration  when  it 
is  made,  or  it  can  never  have  one.  Besides,  the  view  in 
question  would  not  even  serve  the  purposes  of  sub- 

^  See  Offord  v.  Davies,  supra. 

2  Lord  Stair,  cited  in  Thomson  v  James,  18  Dunlop,  1,  17-18,  Cas. 
on  Contr.  125,  147. 


ACCEPTANCE    OF  OFFER.  6 

stantial  justice,  as  it  would  protect  the  offeree,  while 
leaving  the  offerer  wholly  unprotected. 

5.  The  time  when  the  performance  of  the  consider- 
ation is  completed  frequently  depends  upon  a  question 
of  law ;  e.  g.  where  the  consideration  is  the  sale  of 
personal  property,  the  promise  being  to  pay  the  price, 
the  passing  of  the  title  to  the  property  is  what  com- 
pletes the  performance  of  the  consideration ;  and 
hence  it  is  at  that  moment  that  the  promise  to  pay 
the  price  is  made  in  legal  contemplation.  In  the 
common  case,  where  goods  are  ordered  from  a  distance, 
to  be  forwarded  by  the  seller  to  the  buyer,  the  title 
to  the  goods  passes  and  the  contract  is  complete  the 
moment  when  the  goods  pass  from  the  hands  of  the 
seller  into  the  hands  of  the  carrier,  the  latter  becoming 
the  servant  of  the  buyer,  and  the  buyer  being  bound 
to  pay  for  the  goods,  though  they  should  be  lost 
during  the  transit.  All  this  of  course  assumes  that 
the  seller  acts  in  conformity  with  the  express  and 
implied  terms  of  the  order ;  for  the  order  is  in  the 
nature  of  an  offer  to  buy  goods  of  a  certain  description 
on  certain  terms,  and  the  sending  of  the  goods  must 
be  both  an  acceptance  of  the  offer  and  a  performance 
of  the  consideration  specified  in  the  offer  in  order  to 
form  a  contract. 

6.  Sometimes  the  consideration  for  a  promise  is  of 
such  a  nature  that  the  promisor  will  have  no  sure 
means  of  knowing  whether  or  not  it  has  been  per- 
formed unless  he  is  informed  by  the  promisee  ;  and 
this  will  frequently  be  a  sufficient  reason  for  holding 
the  offer  to  contain  an  implied  condition  that  notice 
shall  be  given  of  the  performance  of  the  consideration 
within  a  reasonable  time  after  it  is  performed.     Such 


6  ACCEPTANCE  OF  OFFER. 

a  condition,  however,  will  not  suspend  or  postpone 
the  making  of  the  promise  until  the  notice  is  given  ; 
for  that  is  not  necessary  for  the  protection  of  the 
offerer,  and  it  would  work  an  injustice  to  the  offeree. 
The  promise,  therefore,  will  arise  (and  hence  the 
offerer's  power  to  revoke  will  cease)  the  moment  that 
the  consideration  is  performed,  but  the  liability  of 
the  promisor  will  depend  upon  his  receiving  notice 
pursuant  to  the  implied  terms  of  the  offer.  In  other 
words,  the  condition  contained  in  the  offer  will  be 
imported  into  the  promise.^  Thus,  if  A  offers  tc>_B. 
to  become  guarantor  for  C  to  a  certain  amount,  if 
B  will  give  C  credit  to  that  amount,  A  will  become 
guarantor  as  soon  as  the  credit  is  given,  but  his  guar- 
anty may  reasonably  be  held  to  be  conditional  upon 
his  receiving  notice  within  a  reasonable  time  after- 
wards "that  the  credit  has  been  given.  If,  in  such 
cases,  the  consideration  of  the  promise  consists  in  the 
transfer  of  property,  it  seems  that  the  passing  of  the 
title  to  the  property  will  be  suspended  until  the  notice 
is  given  ;  for  otherwise,  in  the  event  of  no  notice  being 
given  in  time,  the  promisor  would  acquire  the  prop- 
erty wdthout  paying  for  it.  Yet  when  the  title  does 
pass,  it  will  relate  back  to  the  time  when  the  promise 
was  made.  Thus,  an  application  for  shares  in  a  com- 
pany about  to  be  organized  is  an  offer  to  purchase  the 
specified  number  of  shares  on  the  terms  announced 
in  the  company's  prospectus.  If  the  company  accepts 
the  offer,  it  passes  a  vote  allotting  the  shares  to  the 
applicant.  On  ordinary  principles,  this  allotment 
would  complete  the  contract,  the  applicant  thereby 

1  Lord  Stair,  cited  in  Thomson  v.  James,  18  Dunlop,  1, 17-18;  Cas 
on  Contr.  125,  147 


ACCEPTANCE   OF   OFFER.  7 

becoming  owner  of  the  shares,  and  the  company 
acquiring  a  right  to  the  purchase-money.  But  the 
allotment  being  in  its  nature  a  secret  transaction,  it 
is  held  that  the  applicant  is  entitled  to  be  notified  of 
it ;  and  the  consequence  is  that,  while  the  allotment 
fixes  the  rights  of  both  parties  so  that  neither  can 
withdraw  without  the  other's  consent  (and  hence  the 
decision  in  Hebb's  Case  ^  was  erroneous),  j'et  the 
passing  of  the  title  to  the  shares  and  the  applicant's 
liability  for  the  pui'chase-money  are  suspended  until 
the  condition  of  giving  notice  is  either  performed  or 
waived.  When  either  of  these  events  happens,  the 
title  to  the  shares  vests  in  the  applicant,  and  his 
liability  to  pay  the  purchase-money  (previously  con- 
ditional) becomes  absolute.  Yet  the  title  to  the 
shares  vests  by  virtue  of  the  allotment,  and  not  by 
virtue  of  the  giving  or  the  waiving  of  notice  of  it, 
and  hence  when  it  vests  it  relates  back  to  the  time 
of  the  allotment.  As  to  how  notice  of  the  allotment 
must  be  given,  there  has  been  much  conflict  of  opinion  ; 
but  when  the  question  is  correctly  understood,  there 
would  seem  to  be  little  room  for  controversy.  Notice 
has  to  be  given  because  the  applicant  is  supposed  to 
require  it ;  and  he  is  supposed  to  require  it  because 
it  is  convenient  and  desirable,  not  because  it  is  abso- 
lutely necessary,  that  he  should  have  it.  Therefore 
he  cannot  be  supposed  to  require  more  than  due  dili- 
gence on  the  part  of  the  company  ;  and  this  require- 
ment will  be  satisfied  by  sending  a  notice  by  mail, 
properly  directed,  especially  when  that  is  the  only 
diligence   employed  by  the    applicant   to    secure    his 

1  L.  R.  4  Eq.  9,  Cas.  on  Contr.  42. 


8  ACCEPTANCE   OF  OFFER. 

application's  reaching  the  company.  Harris's  Case^ 
is  decided  in  accordance  with  this  view.  Br.  &  Am. 
Tel.  Co.  V.  Colson^  is  contra. 

7.  It  has  been  contended  that  every  acceptance  of 
an  offer  relates  back  to  the  time  when  the  offer  was 
first  made,  and  hence  that  the  time  of  making  the 
offer  is  always,  in  legal  contemplation,  the  time  of 
making  the  contract.  The  doctrine  of  relation,  as 
invoked  by  this  proposition,  is  clearly  a  pure  legal 
fiction,  i.  e.  it  has  no  foundation  in  actual  facts  to 
rest  upon.  It  is  the  acceptance  of  the  offer  that 
makes  the  contract,  as  much  as  it  is  delivery  that 
makes  a  deed.  It  is  true  that  the  offer  is  indispen- 
sable to  the  making  of  the  contract,  but  so  are  writing 
and  sealing  indispensable  to  the  making  of  a  deed. 
It  is  not,  however,  a  conclusive  objection  to  a  relation 
that  it  is  fictitious,  for  the  law  does  sometimes  create 
such  relations ;  but  it  only  does  so  in  order  to  promote 
justice,  i.  e.  in  order  to  prevent  some  injustice  or  some 
inconvenience  which  would  otherwise  arise.  No  such 
reason  can  be  given  in  the  case  in  question,  certainly 
not  in  the  absence  of  any  evidence  of  intention  that 
the  contract  should  take  effect  at  and  from  some  other 
time  than  when  it  was  made.  But  the  proposition 
refutes  itself  by  proving  altogether  too  much ;  for,  if 
it  were  true,  it  would  follow  that  an  offer  could  be 
accepted  with  effect,  notwithstanding  the  death  or 
insanity  of  the  offerer,  and  it  was  actually  so  con- 
tended in  Mactier  v.  Frith.^     Nay,  more,  it  would 

1  L.  K.  7  Ch.  App.  587,  Cas.  on  Contr.  54.  This  case  was  followed 
in  Houseliokl  Fire  Ins.  Co.  v.  Grant,  4  E.*  D.  216. 

2  L.  R.  6  Excli.  108,  Cas.  on  Contr.  45. 

8  6  Wend.  103,  111-113,  Cas.  on  Contr.  77,  82-83. 


ACCEPTANCE   OF   OFFER.  9 

follow  that  an  offer  never  could  be  revoked  to  any 
purpose ;  for  the  acceptance,  whenever  in  fact  made, 
Avould  always,  in  legal  contemplation,  precede  the 
revocation. 

8.  In  all  the  cases  put  in  Mactier  v.  Frith,  as  well 
as  in  most  other  cases,  the  doctrine  of  relation  is  not 
a  mere  fiction,  but  has  a  substantial  foundation  of 
fact  to  rest  upon.  Thus,  in  the  case  of  the  ratification 
of  a  contract  or  conveyance  made  by  an  agent  without 
sufficient  authority,  the  ratification  must  relate  back 
in  order  to  have  any  effect  whatever  ;  for  the  ratifica- 
tion does  not  and  cannot  make  the  contract  or  con- 
veyance ;  that  must  be  made,  if  at  all,  by  the  act  of 
the  agent  in  the  name  of  the  principal.  The  principal 
may  indeed  disregard  the  unauthorized  act  of  the 
agent,  and  make  the  contract  himself  anew ;  but  that 
is  not  a  case  of  ratification,  nor  is  there  in  that  case 
any  relation.  So  in  the  case  of  the  enrolment  of  a 
deed  of  bargain  and  sale,  but  for  the  statute  of  enrol- 
ment the  deed  would  be  complete  and  operative  with- 
out any  such  ceremony ;  the  statute  interferes  and 
makes  the  deed  a  nullity  unless  enrolled ;  but  when 
enrolled,  it  is  the  deed  and  not  the  enrolment  that 
conveys  the  land.  The  enrolment,  therefore,  must 
of  necessity  relate  back.  So  in  the  case  of  a  parol 
contract  rendered  invalid  by  the  Statute  of  Frauds, 
where  the  statute  is  afterwards  complied  with  by  a 
memorandum  in  writing,  or  some  other  sufficient 
act,  it  is  the  parol  agreement  that  makes  the  con- 
tract, and  therefore  the  making  of  the  contract  must 
be  referred  to  the  time  when  the  parol  agreement 
was  made. 

9.  If  the  writer  be  thought  to  require  a  justification 


10  ACCEPTANCE  OF  OFFER. 

for  saying  so  mucli  in  opposition  to  a  view  which  ad 
mits  of  so  little  being  said  in  its  favor,  such  justifica- 
tion will  be  foinid  in  the  fact  that  the  view  in  question 
has  not  only  been  entertained  in  highly  respectable 
quarters,  but  has  been  made  the  basis  of  actual 
decision.  Thus,  in  Kennedy  v.  Lee,^  Lord  Eldon  said 
that  when  an  offer  is  made  and  accepted  by  letter, 
"  the  acceptance  must  be  taken  as  simultaneous  with 
the  offer;"  and  this  dictum  (which  seems  to  have 
been  a  deliberate  one)  has  often  been  cited  as  a  cor- 
rect statement  of  the  law.  In  Potter  v.  Sanders,^ 
Wigram,  V.  C,  seems  to  have  assumed  that  the  law 
was  so,  but  he  held  that  a  fact  necessary  to  raise  the 
question  had  not  been  put  in  issue  by  the  pleadings. 
In  the  very  recent  case  of  Dickinson  v.  Dodds,^  it  was 
admitted  by  the  counsel  for  the  defendant  Allan  that 
"  if  there  had  been  an  acceptance  "  by  the  plaintiff, 
"  it  would  have  related  back,  in  point  of  date,  to  the 
offer ; "  and  Bacon,  V.  C,  not  only  declared  the  law 
to  be  so,  but  actually  gave  the  plaintiff  a  priority  over 
the  defendant  Allan  on  that  ground ;  and  though  his 
decree  was  reversed  on  appeal,  the  reversal  was  upon 
a  ground  which  did  not  impeach  the  soundness  of  the 
position  above  referred  to.* 

10.  Perhaps  Lord  Eldon's  dictum  Avill  admit  of  a 
different  interpretation  from  the  one  which  has  been 
put  upon  it.     He  says  ''  the  acceptance  must  be  taken 

1  3  Mer.  441,  454. 

2  G  Hare,  1,  8,  Cas.  on  Contr.  15,  19. 

3  2  Ch.  Div.  463,  4(37,  470,  Cas.  on  Contr.  61,  63,  66. 

*  It  may  be  remarked  that  there  was  another  reason  in  tliis  case, 
as  well  as  in  Potter  v.  Sanders,  why  the  acceptance  could  not  properl}' 
be  made  to  relate  back,  namely,  that  it  would  afiect  the  rights  of  a 
person  who  was  not  a  party  to  the  contract. 


ACCEPTANCE   OF   OFFER.  11 

as  simultaneous  with  the  oflPer ;  "  and  it  is  true  that 
the  acceptance  and  the  offer  must  co-exist,  for  if  the 
offer  has  ceased  to  exist  when  the  acceptance  is  made, 
of  course  there  can  be  no  contract ;  and  as  some  time 
must  always  elapse  between  the  making  of  an  offer 
and  the  acceptance  of  it,  the  acceptance  must  of 
necessity^  be  carried  back  to  the  time  of  making  the 
offer,  or  else  the  offer  must  be  brought  forward  to  the 
time  of  making  the  acceptance,  i.  e.  the  acceptance 
must  operate  by  relation,  or  the  offer  must  continue ; 
and  in  either  way  the  words  of  Lord  Eldon  would  be 
satisfied.  Between  these  two  views  there  ought  never 
to  have  been  any  doubt,  for  the  latter  i§  obvious  and 
rational,  carries  out  the  intention  of  the  parties,  and 
does  not  require  the  invention  of  any  fiction  ;  and  yet 
it  seems  never  to  have  occurred  to  the  English  courts 
that  an  offer  might  continue  indefinitely  until  the 
case  of  Adams  v.  Lindsell  ^  (1818)  ;  and  when  the 
court  declared  in  that  case  that  "  the  defendants  must 
be  considered  in  law  as  making,  during  every  instant 
of  the  time  their  letter  was  travelling,  the  same  identi- 
cal offer  to  the  plaintiffs,"  the  idea  was  a  new  one. 
When  Cooke  v.  Oxley^  (1790)  was  decided  by  the 
same  court,  it  was  supposed  that  an  offer  must  be 
accepted,  if  ever,  at  the  same  interview  at  which  it 
was  made  (i.  e.  in  legal  contemplation  at  the  same 
moment  at  which  it  was  made),  and  that  an  accept- 
ance at  any  subsequent  time  would  be  only  an  offer 
in  turn,  which  the  original  offerer  might  accept  or 
reject  at  pleasure ;  and  that  it  was  immaterial  that 
the  acceptance  in  point  of  time  came  within  the  very 

1  1  B.  &  Aid.  681,  Cas.  on  Contr.  4. 

2  3  T.  R.  653,  Cas.'on  Contr.  2. 


12  ACCEPTANCE   OF  OFFER. 

terms  of  the  offer.  And  even  ten  years  after  tlie 
decision  of  Adams  v.  Lindsell,  the  same  court  decided 
Head  v.  Diggon  ^  (1828),  under  the  influence  of  the 
old  notion.  So  in  Routledge  v.  Grant  ^  (1828), 
another  court  was  at  a  loss  how  to  apply  the  doctrine 
of  Adams  v.  Lindsell,  thinking  that  it  might  involve 
the  consequence  of  making  an  offer  irrevocable  during 
tlie  period  of  its  continuance.  If,  therefore,  Lord 
Eldon's  dictum  meant  what  it  has  commonly  been 
supposed  to  mean,  it  may  be  explained  by  the  fact  of 
his  supposing  (Adams  v.  Lindsell  not  having  been 
decided  till  the  year  following)  that  in  no  other  way 
could  a  contract  be  made  by  means  of  letters.  If 
such  was  the  origin  of  the  opinion  that  an  acceptance 
relates  back  to  the  time  of  making  the  offer,  there 
need  be  the  less  hesitation  in  rejecting  it  on  account 
of  the  authority  by  which  it  is  supported. 

11.  Acceptance  has  hitherto  been  considered  with 
reference  to  such  offers  only  as  contemplate  unilateral 
contracts.  When  the  contract  is  to  be  bilateral, 
though  the  principles  are  the  same,  the  application 
of  them  is  very  different.  It  still  remains  true  that 
the  offer  requires  an  acceptance  and  tlie  giving  of  the 
consideration  to  convert  it  into  a  binding  promise ; 
but  as  the  consideration  consists  of  a  counter-promise, 
so  the  giving  of  the  consideration  consists  in  making 
this  counter-promise.  It  follows  also  that  the  origi- 
nal offer  cannot  become  a  binding  promise  until  the 
counter-promise  also  becomes  valid  and  binding,  for 
until  then  the  consideration  is  not  given.  Hence  the 
familiar  rules,  that  in  bilatei'aljcontracts  i>either_gart^ 

1  3  M.  &  R.  97,  Cas.  on  Contr.  10. 

2  4  Bing.  653,  Cas.  on  Contr.  6. 


ACCEPTANCE   OF  OFFER.  13 

will  be  bound  unless  both  are  bound, ^  and  that  both 
must  become  bound  at  tlie  same  moment  of  time ;  and 


these  rules  hold  in  the  civil  law,  and  in  the  law  of 
Scotland,  as  well  as  in  our  law,  for,  although  the 
former  do  not  require  a  consideration  to  make  a 
promise  binding,  yet  an  offer  which  contemplates  a 
counter-promise  is  conditional  upon  the  counter- 
promise  being  made.^ 

12.  There  are  other  important  particulars  in  which 
a  bilateral  contract  differs  from  one  that  is  unilateral 
in  respect  to  the  acceptance  of  an  offer :  while  in  the 
latter  the  acceptance  is  merged  and  lost  sight  of  in 
the  performance  of  the  consideration,  in  the  former 
the  giving  of  the  consideration  is  merged  and  lost 
sight  of  in  the  acceptance ;  while  in  the  latter  the 
performance  of  the  consideration  necessarily  implies 
an  acceptance  of  the  offer,  in  the  former  the  accept- 
ance of  the  offer  necessarily  implies  the  giving  of  the 
consideration.  Therefore,  a  mere  offer  in  terrns  and 
an  acceptance  in  terms  are  sufficient  to  form  a  bilateral 
contract,  but  not  a  unilateral  contract.  So  an  accept- 
ance in  terms  is  a  sine  qua  non  in  a  bilateral  contract, 
while  in  a  unilateral  contract  an  acceptance  in  terms 
may  be,  and  commonly  is,  dispensed  with.  Again,  in 
a  unilateral  contract  the  offer  becomes  a  contract  in 
consequence  of  what  the  offeree  does,  in  a  bilateral 
contract  in  consequence  of  what  he  sat/s.  The  reason 
why  an  acceptance  in  terms  is  necessary,  and  why  it 

1  Payne  v.  Cave,  3  T.  R.  148,  Cas.  on  Contr.  1 ;  Cooke  v.  Ox\ey, 
3  T.  R.  653,  Cas.  on  Contr.  2 ;  Head  v.  Diggon,  8  M.  &  R.  97,  Cas.  on 
Contr.  10 ;  Martin  v.  Mitchell,  cited  in  Hebb's  Case,  L.  R.  4  Eq.  9,  12, 
Cas.  on  Contr.  42,  44. 

-^  Thomson  i'.  James,  18  Dunlop,  1, 19,  Cas.  on  Contr.  125, 149-150 


14  ACCEPTANCE   OF   OFFER. 

also  suffices,  in  a  bilateral  contract,  is,  that  what  is 
called  an  acceptance  is  in  that  connection  also  and 
chiefly  a  counter-promise. 

13.  But  how  is  it,  the  reader  may  ask,  that  a  mere 
olfer  on  one  side  and  an  acceptance  of  it  on  the  other 
can  create  a  promise  on  each  side?  that  what  purports 
to  be  but  one  offer  and  one  acceptance  is  in  effect  two 
offers  and  two  acceptances?  It  is  because  everything 
except  the  original  offer  and  the  acceptance  of  it  is 
implied.  Thus,  it  generally  appears  from  the  nature 
and  terms  of  an  offer  whether  it  requires  a  counter- 
offer, and,  if  it  does,  what  the  terms  of  such  counter- 
offer must  be  ;  and  therefore  notliing  need  be  said  in 
the  offer  upon  either  of  those  points.  Nor  is  it  ever 
necessary  for  an  offerer  to  say  that  he  will  accept 
a  counter-offer,  if  made ;  for  if  his  offer  requires  a 
counter-offer,  it  is  necessarily  implied  that  he  will 
accept  the  latter.  So  the  acceptance  of  an  offer 
which  requires  a  counter-offer  need  say  nothing  about 
the  latter ;  for  the  acceptance  necessarily  implies  the 
making  of  the  counter-offer,  as  the  former  would  be 
idle  and  nugatory  without  the  latter,  and  the  terms 
of  the  latter,  having  been  fixed  by  the  original  offer, 
do  not  need  to  be  repeated.  Then,  the  counter-offer 
being  thus  made  by  implication,  no  further  act  of 
acceptance  of  it  is  necessary,  for,  the  original  offerer 
having  by  implication  declared  his  intention  to  accept 
it,  he  is  conclusively  presumed  to  remain  in  that  state 
of  mind  so  long  as  his  offer  continues ;  andjience  the_ 
counter-offer,  by  a  conclusive  presumption  of  law,  i3_ 
accepted  the  moment  it  is  made.^    The  same  principle 

1  Grotius,  Lib.  2,  c.  11,  §  14. 


ACCEPTANCE   OF   OFFER.  15 

is  familiar  in  transfers  of  property ;  for,  while  the 
acceptance  of  the  transferee  is  necessary  for  the  pass- 
ing of  the  title,  yet  it  may  be,  and  frequently  is,  given 
in  advance  by  soliciting  the  transfer.^ 

14.  It  has  been  seen  that  the  acceptance  of  the 
original  offer,  in  the  case  of  a  bilateral  contract,  must 
be  expressed,  i.  e.  must  be  made  by  words  or  signs  ; 
and  that  the  reason  for  this  is,  that  the  acceptance 
contains  a  counter-offer.  Moreover,  the  reason  why 
the  counter-offer  makes  it  necessary  that  the  accept- 
ance should  be  expressed  is,  that  communication  to 
the  offeree  is  of  the  essence  of  every  offer.  The 
acceptance,  therefore,  must  be  communicated  to  the 
original  offerer,  and  until  such  communication  the  con- 
tract is  not  made.^  When  the  parties  are  together 
and  contract  orally,  no  question  can  often  arise  as 
to  communication  ;  but  when  they  are  at  a  distance 
from  each  other  and  contract  by  letter,  such  a  ques- 
tion frequently  arises.  The  principle,  however,  is 
the  same  in  both  cases.  In  contracts  inter  prcesentes 
the  words  or  signs  must  be  both  heard  or  seen  and 
understood ;  ^  in  contracts  inter  ahsentes  the  letter 
must  be  received  and  read.*  Upon  this  latter  point, 
however,  there  has  been  much  difference  of  opinion, 
and  it  has  been  supposed  to  be  pretty  well  settled  in 
England  and  this  country  that  the  contract  is  com- 
plete the  moment  the  letter  of  acceptance  is  mailed. 

1  Grotius,  Lib.  2,  c.  6,  §  2. 

2  Per  Lord  Currieliill,  in  Thomson  v.  James,  18  Dunlop,  1,  19,  Cas. 
on  Contr.  125,  149-150. 

3  S.  V.  F.,  Cas.  on  Contr.  156, 162.  The  original  of  this  case  will  be 
found  in  Merlin,  Re'pertoire  de  Jurisprudence,  Tit.  Vente,  1,  Art.  IIL 
No.  XL,  bis. 

*  S.  V.  F.,  Cas.  on  Contr.  166,  159-160. 


16  ACCEPTANCE  OF  OFFER. 

Most  of  the  authority  on  the  subject,  however,  con- 
sists of  dicta,  and  these  dicta  may  be  explained  by 
the  fact  that  the  nature  of  the  question  has  been 
misunderstood.  Of  actual  decision  there  is  indeed 
very  little.  Of  all  the  cases  contained  in  the  writer's 
collection  of  Cases  on  Contracts,  the  point  in  ques- 
tion seems  to  have  been  decided  in  only  three,  one 
of  them  (and  the  earliest)  a  Massachusetts  case 
(McCulloch  V.  The  Eagle  Ins.  Co.^),  another  a  New 
York  case  (Vassar  v.  Camp  2),  and  the  third  a  Scotch 
case  (Thomson  v.  James  ^).  All  the  other  cases 
turned  upon  some  other  question.  Thus,  in  Adams 
V.  Lindsell,^  it  was  erroneously  supposed  that  the  offer 
had  been  revoked  between  the  mailing  and  the  receipt 
of  the  letter  of  acceptance  (181),  and  hence  that  the 
case  depended  upon  the  time  when  the  acceptance 
became  complete.  The  only  real  question,  however, 
was  whether  the  acceptance  came  too  late,  the  letter 
containing  the  offer  having  miscarried.  In  Potter  v. 
Sanders,^  the  contract  with  Potter  was  entitled  to  pri- 
ority in  any  view,  since  the  Statute  of  Frauds  was  not 
satisfied  as  to  the  contract  with  Coates  until  April  27  ; 
and  though  the  latter  contract  might  relate  back  to 
the  oral  agreement  as  between  the  parties  to  it,  it 
could  not  so  relate  as  to  a  third  person.  In  Dunlop 
V.  Higgins,^  the  only  question  was  whether  the  offer 
was  accepted  in  time  ;  and  it  was  held  that  it  was, 
whether   the    acceptance    became    complete    on    the 

1  1  Pick.  278,  Cas.  on  Contr.  72. 

2  1  Kern.  441,  Cas.  on  Contr.  110. 

8  18  Dunlop,  1,  Cas.  on  Contr.  125. 
*  1  B.  &  Aid.  681,  Cas.  on  Contr.  4. 
6  6  Hare,  1,  Ca8.  on  Contr.  16. 
6  1  II.  L.  Cas.  381,  Cas.  on  Contr.  21. 


ACCEPTANCE   OF   OFFER.  17 

mailing  or  on  the  receipt  of  the  letter  of  acceptance.^ 
In  Hebb's  Case,^  in  Br.  and  Am.  Tel.  Co.  v.  Colson,-' 
and  in  Harris's  Case,*  the  contract  was  unilateral  (6), 
and  hence  those  cases  are  not  in  point.  In  McCulloch 
V.  Eagle  Ins.  Co.^  the  questi(<*n  was  actually  involved, 
and  the  decision  was  in  favor  of  the  view  here  con- 
tended for.  In  Mactier  v.  Frith,^  the  offer  was  to  sell 
to  Mactier  an  undivided  half- interest  in  a  cargo  of 
brandy  already  in  his  possession.  As  soon,  therefore, 
as  Mactier  accepted  the  brandy  on  the  terms  offered, 
the  title  passed,  and  he  became  indebted  for  the 
priced  No  actual  promise  by  him  was  necessary.  It 
was  not  even  necessary  that  he  should  write  a  letter 
of  acceptance,  still  less  that  it  should  reach  Frith. 
In  Averill  v.  Hedge,^  the  only  question  confessedly 
was  whether  the  letter  of  acceptance  was  mailed  in 
time.  In  Tayloe  v.  Merchants'  Fire  Ins.  Co.^  the 
defendant's  offer  contemplated  a  unilateral  contract 
(117),  and  this  offer  was  accepted  and  the  considera- 
tion paid  the  moment  when  the  plaintiff  sent  his 
check  for  the  premium.  It  was  the  same  as  if  money 
had  been  sent.  It  is  true  that  the  plaintiff  became 
liable  to  the  defendant  on  his  check,  but  that  liability 
arose  when  the  check  was  delivered,  i.  e.  when  the 
letter  containing  it  was  mailed.     Vassar  v.  Camp  ^^ 

1  See  Cas.  on  Contr.  47-49,  52,  53,  59-60. 

2  L.  R.  4  Eq.  9,  Cas.  on  Contr.  42. 

8  L.  R.  6  Exch.  108,  Cas.  on  Contr.  45. 
*  L.  R.  7  Ch.  App.  587,  Cas.  on  Contr.  64. 
'  Supra. 

6  6  Wend.  103,  Cas.  on  Contr.  77. 
■^  See  tit.  Debt. 

8  12  Conn.  424,  Cas.  on  Contr.  90. 
»  9  How.  390,  Cas.  on  Contr.  106. 
*<•  Supra. 

2 


18  ACCEPTANCE   OF   OFFER. 

must  be  admitted  to  be  in  point,  but  the  effect  of  the 
decision  was  not  such  as  to  recommend  it.  Indeed,  it 
is  doubtful  if  it  can  stand  in  any  view  that  can  be 
taken  of  it ;  for,  assuming  that  the  contract  was  com- 
plete the  moment  the  plaintiff's  letter  of  acceptance 
was  mailed,  there  is  much  ground  for  holding  that 
the  defendants'  liability  was  conditional  upon  their 
receiving  prompt  notice  of  the  acceptance  of  their 
offer. 1  This  view  may  be  fairly  rested  upon  a  neces- 
sary implication,  though  it  is  much  aided  by  expres- 
sions in  the  defendants'  offer.  It  also  detracts  from 
the  authority  of ,  Vassar  v.  Camp,  that  the  court 
regarded  the  question  as  already  conclusively  settled 
by  Mactier  v.  Frith.  Dunmore  v.  Alexander^  is 
opposed  to  Vassar  v.  Camp,  so  far  as  it  goes,  but  the 
point  was  not  involved.  Thomson  v.  James  ^  agrees 
with  Vassar  v.  Camp,  but  the  reasoning  by  which  the 
decision  is  supported  is  at  least  neutralized  by  the 
dissenting  opinion  of  Lord  Curriehill.  The  case  of 
S.  V.  F.*  contains  a  powerful  argument  by  Merlin  in 
support  of  the  view  adopted  by  McCuUoch  v.  The 
Eagle  Ins.  Co.,  but  the  point  was  not  decided. 

15.  It  remains  to  notice  the  principal  arguments 
which  have  been  advanced  in  support  of  the  view  that 
the  contract  is  complete  the  moment  the  letter  of 
acceptance  is  mailed.  1.  It  is  said  tliat,  if  the  con- 
tract is  not  made  until  the  letter  of  acceptance  comes 
to  the  knowledge  of  the  offerer,  it  can  never  be  made.^ 
This  proposition  assumes  that,  if  the  contract  cannot 

1  See  tit.  Notice. 

2  9  Shaw  &  Dunlop,  190,  Cas.  on  Contr.  121. 

*  Supi-a.  *  Supra,  p.  15,  n.  (3). 

*  Adams  v.  Lindsell,  1  B.  «&  Aid.  681,  Cas.  on  Contr.  4,  5 ;  Mactier  y 
Frith.  6  Wend.  103,  116-118,  Cas.  on  Contr.  77,  85-86. 


ACCEPTANCE   OF   OFFER.  19 

be  made  until  the  acceptance  comes  to  the  knowledge 
of  the  offerer,  it  must  be  because  this  knowledge  of 
the  offerer  is  one  of  the  necessary  elements  of  a  con- 
tract. If  the  argument  be  stated  in  the  form  of  a 
syllogism,  it  will  stand  thus :  If  the  contract  must 
become  known  to  the  offerer  the  moment  it  is  made, 
it  must  equally  become  known  to  the  offeree  the 
moment  it  is  made ;  but  a  contract  inter  absented 
cannot  become  known  to  both  parties  at  the  same 
moment,  and  so  not  at  the  moment  it  is  made ;  ergo  it 
need  not  become  known  to  the  offerer  the  moment 
it  is  made.  The  fault  of  this  syllogism  is  in  the 
major  premise,  which  is  untrue.  The  reason  why 
the  contract  must  become  known  to  the  offerer  the 
moment  it  is  made  is  an  accidental  one  ;  namely, 
because  the  contract  is  made  the  moment  the  counter- 
offer is  made,  and  the  counter-offer  is  made  the  mo- 
ment the  letter  of  acceptance  comes  to  the  knowledge 
of  the  original  offerer.  In  other  words,  the  letter  of 
acceptance  must  come  to  the  knowledge  of  the  offerer 
for  the  same  reason  that  the  letter  containing  the  origi- 
nal offer  must  come  to  the  knowledge  of  the  offeree. 
2.  It  is  said  that  an  offer  made  through  the  mail 
impliedly  authorizes  an  answer  to  be  sent  through 
the  same  channel ;  and  therefore,  when  the  offeree 
has  mailed  a  letter  of  acceptance,  he  has  done  every- 
thing which  the  offer  requires  him  to  do.^  It  is  true 
that  he  has  done  everything  required  of  him  as  to  the 
mode  of  communicating  his  counter-offer ;  but  the 
offer  also  requires  by  a  necessary  implication  that  a 
counter-offer  shall  be  made,  and  this  cannot  be  done 
without  communication.    If,  therefore,  the  offer  should 

1  Dunlop  V.  Higgins,  1  H.  L.  Gas.  381,  Gas.  on  Contr.  21,  30-32. 


20  ACCEPTANCE  OF  OFFER. 

expressly  declare  that  the  contract  should  be  complete 
immediately  upon  mailing  a  letter  of  acceptance,  such 
a  declaration  would  be  wholly  inoperative.  3.  It  is 
said  that  the  offerer,  by  sending  his  offer  by  mail, 
makes  the  post-office  his  servant  or  messenger  to 
receive  and  return  an  answer,  and  therefore  that  the 
mailing  of  an  answer  is  a  delivery  of  it  to  the  offerer. 
It  is  unnecessary  to  question  the  correctness  of  this 
proposition,^  for  it  may  be  fully  admitted,  without  at 
all  advancing  the  argument  in  support  of  which  it  is 
adduced.  Even  if  the  offerer  should  send  his  offer 
by  his  own  servant,  and  the  latter  should  bring  back 
a  letter  of  acceptance,  though  the  delivery  of  the  letter 
of  acceptance  to  the  servant  would  be  a  delivery  to 
his  master,  and  so  vest  the  property  in  the  letter  in 
the  master,  it  would  not  complete  the  contract. ^  If, 
indeed,  the  offerer  should  send  his  offer  by  a  messen- 
ger, and  should  authorize  the  latter  to  receive  a  verbal 
acceptance  as  the  offerer's  agent,  the  case  would  be 
different ;  for  the  communication  of  the  acceptance 
to  the  agent  would  be  a  communication  of  it  to  the 
principal,  and  the  knowledge  of  the  agent  would  be 
the  knowledge  of  the  principal.^  4.  It  has  been 
claimed  that  the  purposes  of  substantial  justice,  and 
the  interests  of  contracting  parties  as  understood  by 
themselves,  will  be  best  served  by  holding  that  the 
contract  is  complete  the  moment  the  letter  of  accept- 
ance is  mailed ;  and  cases  have  been  put  to  show  that 
the  contrary  view  would  produce  not  only  unjust  but 

1  But  see  Thomson  v.  James,  18  Dunlop,  1,  20-22,  Cas.  on  Contr 
125,  152-155  per  Lord  Currieliill. 

2  S.  V.  F.,  Cas.  on  Contr.  166.  158-159,  162. 

8  See  Ilebb's  Case,  L.  R.  4  Eq.  9,  12,  Cas.  on  Contr.  42,  44. 


ACCEPTANCE   OF   OFFER.  21 

absurd  results. ^  The  true  answer  to  this  argument  is, 
that  it  is  irrelevant ;  but,  assuming  it  to  be  relevant, 
it  may  be  turned  against  those  who  use  it  without 
losing  any  of  its  strength .^  The  only  cases  of  real 
hardship  are  where  there  is  a  miscarriage  of  the  lettei* 
of  acceptance,  and  in  those  cases  a  hardship  to  one  of 
the  parties  is  inevitable.  Adopting  one  view,  the 
hardship  consists  in  making  one  liable  on  a  contract 
which  he  is  ignorant  of  having  made ;  adopting  the 
other  view,  it  consists  in  depriving  one  of  the  benefit 
of  a  contract  which  he  supposes  he  has  made.  Be- 
tween these  two  evils  the  choice  would  seem  to  be 
clear :  the  former  is  positive,  the  latter  merely  nega- 
tive ;  the  former  imposes  a  liability  to  which  no  limit 
can  be  placed,  the  latter  leaves  everything  in  statu 
quo.^  As  to  making  provision  for  the  contingency  of 
the  miscarriage  of  a  letter,  this  is  easy  for  the  person 
who  sends  it,  while  it  is  practically  impossible'  for  the 
person  to  whom  it  is  sent.* 

16.  Assuming  it  to  be  established  that  a  letter  of 
acceptance,  in  case  of  a  bilateral  contract,  contains  by 
implication  a  counter-offer,  it  follows  that  it  is  subject 
to  revocation  until  the  counter-offer  is  accepted,  i.  e. 
until  the  letter  of  acceptance  reaches  the  original 
offerer,^     And  if  a  letter  of  revocation   reaches   the 

1  See  Harris's  Case,  L.  R.  7  Ch.  App.  687,  594,  Cas.  on  Contr.  54, 
68-59,  per  Mellish,  L.  J. 

2  See  Br.  &  Am.  Tel.  Co.  v.  Colson,  L.  R.  6  Exch.  108,  112,  118, 
Cas.  on  Contr.  45,  47,  51. 

2  See  Vassar  v.  Camp,  1  Kern.  441,  Cas.  on  Contr.  110,  and  com- 
pare §  14. 

*  See  Br.  &  Am.  Tel.  Co.  v.  Colson,  L.  R.  6  Exch.  108,  118,  Cas. 
on  Contr.  45,  51,/)er  Bramwell,  B. 

^  But  see  Thomson  v.  James,  18  Dunlop,  1,  13,  Cas.  on  Contr.  125> 
140,  per  Lord  President,  contra. 


22  ACCEPTANCE  OF  OFFER. 

original  offerer  at  the  same  moment  as  the  letter  of 
acceptance,  as  there  can  be  no  presumption  that  the 
latter  is  read  first,  the  former  will  render  the  latter 
inoperative. 1  So  if  a  letter  of  acceptance  be  followed 
by  another  letter,  not  revoking  but  modifying  the 
first,  and  the  two  be  delivered  to  the  original  offerer 
at  tbe  same  moment,  the  former  will  take  effect  only 
as  modified  by  the  latter  ;  and  hence,  if  the  latter 
does  not  conform  to  the  original  offer,  there  will  be 
no  contract.^ 

17.  An  offer  can  only  be  accepted  in  the  terms  in 
which  it  is  made.  An  acceptance,  therefore,  which 
modifies  the  offer  in  any  particular,  will  go  for 
nothing.^  Otherwise  a  contract  might  be  made  with- 
out the  assent  of  both  parties  to  its  terms.  Thus, 
where  an  offer  was  made  in  writing  to  purchase  a 
lease,  possession  to  be  given  on  the  25th  of  July,  and 
the  offeree  answered  in  writing  that  he  accepted  the 
offer,  and  would  give  possession  on  the  1st  of  August, 
there  was  held  to  be  no  contract,  though  it  appeared 
that  the  change  of  date  was  entirely  unintentional.* 
An  acceptance  must  conform  to  the  offer  also  in  re- 
spect to  the  time  and  manner  in  which  it  is  given  or 
made.  Therefore,  if  an  offer  requires  the  acceptance 
to  be  by  letter  sent  to  a  particular  place,  a  letter  of 
acceptance  sent  to  another  place  will  be  of  no  avail. ^ 

18.  As  offers  are  made  only  with  a  view  to  their 

1  Dunmore  v.  Alexander,  9  Sliaw  &  Dunlop,  190,  Cas  on  Coatr. 
121 ;  S.  V.  F.,  Cas.  on  Contr.  156. 

2  S.  V.  F.,  supra. 

8  See  Harris's  Case,  L.  R.  7  Ch.  App.  687,  593,  Cas.  on  Contr.  54, 
57-58 ;  Vassar  v.  Camp,  1  Kern.  441,  445,  Cas.  on  Contr.  110,  113. 

*  Routledge  v.  Grant,  4  Bing.  653,  Cas.  on  Contr.  6. 

*  Eliasou  V.  ilenshaw,  4  Wheat.  225,  Cas.  on  Contr.  70. 


ACCEPTANCE   OF   OFFER.  23 

being  accepted,  when  an  offer  is  rejected  it  is  at  an 
end ;  and  an  acceptance  of  it  afterwards  can  only 
operate  as  a  new  counter-offer,  which  the  original 
offerer  may  either  accept  or  reject. ^  And  if  an  offeree 
in  terms  neither  accepts  nor  rejects  the  offer,  but 
makes  a  different  offer  in  turn,  this  will  be  deemed  a 
constructive  rejection  of  the  original  offer.^ 

See  tits.  Mutual  Consent  ;  Offer  ;    Revocation  of 
Offer. 

^  Cas.  on  Contr.  15,  n.  1. 

2  Hyde  v.  Wrench,  3  Beav.  334,  Cas.  on  Contr.  13. 


24  BIDDING  AT  AUCTION. 


BIDDING  AT  AUCTION. 


19.  It  was  decided  in  Payne  v.  Cave  ^  that  a  bid 
at  an  auction  is  in  the  nature  of  an  offer,  which  is 
accepted  by  knocking  down  the  hammer ;  and  perhaps 
it  is  too  hxte  to  question  the  correctness  of  the  decision. 
On  principle,  however,  it  is  open  to  much  doubt. 
The  true  view  seems  rather  to  be,  that  the  seller 
makes  the  offer  when  the  article  is  put  up,  namely, 
to  sell  it  to  the  highest  bidder  ;  and  that,  when  a  bid 
is  made,  there  is  an  actual  sale,  subject  to  the  con- 
dition that  no  one  else  shall  bid  higher.  This  view 
was  urged  by  the  plaintiff's  counsel.  If  the  bidder  can 
retract  at  any  time  before  the  hammer  falls,  so  also  can 
the  seller ;  and  hence  a  bid  will  secure  no  right  to  the 
bidder,  whether  there  is  any  higher  bid  or  not. 
The  article  may  be  withdrawn,  if  the  bidding  is 
not  satisfactory,  though  it  were  put  up  with  the 
express  announcement  that  it  should  be  sold  to  the 
highest  bidder.2  That  the  decision  in  Payne  v.  Cave 
has  not  been  acquiesced  in  by  sellers  at  auction  ap- 
pears from  the  frequent  attempts  that  have  been  made 

1  8  T.  R.  148,  Cas.  on  Contr.  1. 

2  Compare  Warlow  v.  Harrison,  1  El.  &  El.  295,  309. 


BIDDING   AT   AUCTION.  25 

to  render  bids  irrevocable  by  a  provision  to  that  effect 
inserted  in  the  conditions  of  sale.^  That  such  attempts 
are  unavailing  is  no  argument  in  favor  of  Payne  v. 
Cave,  but  rather  the  contrary. 

1  Dart  on  Vendors  {5th  ed.),  124. 


26  CONCURRENT   CONDITIONS. 


CONCURRENT   CONDITIONS. 


20.  A  concuvrent  condition  must  consist  of  some 
Act  to  be  done  by  the  covenantee  or  promisee,  which 
can  be  done  at  the  same  moment  that  the  covenant 
or  promise  is  performed.  Such  conditions  are  found 
for  the  most  part  in  bilateral  contracts,  and  the 
act  which  constitutes  the  condition  of  one  of  the 
covenants  or  promises  is  commonly  the  subject  of 
the  counter-covenant  or  counter-promise  ;  but  a  con- 
current condition  may  consist  of  an  act  which  the 
covenantee  or  promisee  is  under  no  obligation  to  per- 
form, and  hence  such  a  condition  may  be  contained 
in  a  unilateral  contract.  Indeed,  in  the  earliest  re- 
ported case  in  which  a  condition  was  held  to  be 
concurrent,  the  contract  was  unilateral.^  The  dis- 
tinctions between  express  conditions,  conditions  im- 
plied by  law,  and  conditions  implied  in  fact  (32), 
are  as  applicable  to  concurrent  conditions  as  to  con- 
ditions precedent,  though  much  the  greater  number 
of  concurrent  conditions  are  implied  by  law,  and  are 
therefore  contained  in  bilateral  contracts.  Concurrent 
conditions  of  this  latter  class  are  fully  considered 
under  another  title.'-^ 

1  Turner  v.  Goodwin,  Fortescue,  145,  cited  in  Cas.  on  Contr.  904. 

2  See  tit.  Dependent  and  Independent  Covenants  and  Prom- 
ises. 


CONCURRENT   CONDITIONS.  27 

21.  Whether  an  express  condition  be  concurrent  or 
precedent  will  seldom  depend  upon  the  language  in 
which  it  is  expressed,  as  such  language  is  generally 
as  applicable  to  one  as  to  the  other.  It  will  depend 
first  and  chiefly  upon  whether  the  act  which  consti- 
tutes the  condition  is  capable  of  being  performed 
concurrently  with  the  covenant  or  promise  to  which 
it  is  annexed.  If  it  is  not,  the  condition  must  be  pre- 
cedent. If  it  is,  the  condition  will  be  concurrent,  if 
it  has  the  other  necessary  qualities  of  concurrent 
conditions  (133)  ;  otherwise  it  will  be  precedent. 

22.  In  a  unilateral  contract,  the  only  act  which  is 
likely  to  be  the  subject  of  a  concurrent  condition  is 
the  act  which  constitutes  the  consideration  of  the 
covenant  or  promise,  and  that  cannot  be  the  condition 
of  a  promise,  as  a  promise  cannot  exist  until  the  con- 
sideration is  performed.  Therefore,  in  Collins  v. 
Gibbs,^  and  in  Ball  v.  Peake,^  the  declaration  stated 
no  promise,  but  only  an  offer,  A  covenant,  however, 
may  be  conditional  upon  the  performance  of  the  con- 
sideration, and  such  a  condition  will  generally  be 
concurrent :  e.  g.  in  Large  v.  Cheshire,^  and  in  Lan- 
cashire V.  Killingworth.*  Moreover,  if  a  covenant  be 
given  before  the  consideration  for  it  is  performed,  and 
if  there  be  no  covenant  to  perform  the  consideration, 
the  only  way  of  securing  its  performance  is  by  making 
the  covenant  expressly  conditional  on  its  performance. 
In  such  a  case,  therefore,  the  court  will  be  astute  to 
find  an  express  condition.     Thus,  in  Lock  v.  Wright,^ 

1  2  Burr.  8W,  Cas.  on  Contr.  462. 

2  1  Sid.  13,  Cas.  on  Contr.  791. 

8  1  Vent.  147,  Cas.  on  Contr.  ''95. 

<  1  Ld.  Rayni.  68G,  12  Mod.  529,  Cas.  on  Contr.  796. 

3  1  Stra.  5Ga,  Cas.  on  Contr.  45G. 


28     \  CONCURRENT   CONDITIONS. 


28    \ 


the  defendant's  covenant  to  pa}'  for  the  stock  was  held 
to  be  expressly  conditional  upon  the  transfer  of  the 
stock,  though  it  was  difficult  to  find  such  a  condition 
in  the  covenant ;  and  if  it  had  appeared  that  there  was 
a  covenant  by  the  plaintiff  to  transfer  the  stock,  the 
court  would  not  have  held  that  the  transfer  of  it  was     > 
an  express  condition  of   the  defendant's  covenant  to 
pay  for   it.     There  is,  indeed,  reason  to  suspect  that 
the  plaintiff  had  covenanted  to  transfer  the  stock  by 
a  separate  deed,  and,  if  so,  each  deed  constituted  a 
separate  unilateral  contract,  and  each  was  independent   / 
of   the  other,  unless  expressly  conditional    upon  the ' 
performance  of  the  otheri^ 

23.  In  a  bilateral  contract,  if  the  covenant  or 
promise  on  one  side  be  expressly  conditional  upon 
the  performance  of  the  covenant  or  promise  on  the 
other  side,  the  condition  will  be  concurrent  if  the 
same  act  would  constitute  a  concurrent  condition  by 
implication  in  the  absence  of  any  express  condition ; 
otherwise  it  will  be  precedent.  Therefore,  in  Brocas' 
Case,2  jj^  Lea  v.  Exelby,^  in  Pordage  v.  Cole,*  and  in 
Sibthorp  v.  Brunei,^  the  conditions  were  all  concurrent, 
whether  express  or  implied,  because  there  would  have 
been  mutual  and  concurrent  conditions  in  each  case 
by  implication,  in  the  absence  of  any  express  con- 
dition. So  in  Giles  v.  Giles,^  the  execution  and 
delivery  of  the  release  by  the  plaintiff  was  a  con- 
current condition  of  the  defendant's  promise  to  pay 
the  200^.,  the  former  being  the  consideration  of  the 

1  Compare  Callonel  i-.  Briggs,  1  Salk.  112,  Cas.  on  Ccutr.  722. 

2  3  Leon.  219,  Cas.  on  Contr.  442. 

8  Cro.  Eliz.  888,  Cas.  on  Contr.  789. 
*  1  Wms.  Saund.  319,  Cas.  on  Contr.  625. 
6  3  Exch.  826,  Cas.  on  Contr.  G79. 
6  9  Q.  B.  164,  Cas.  on  Contr.  744 


CONCURRENT   CONDITIONS  29 

latter.  In  Storer  v.  Gordon,^  the  delivery  of  the  out- 
ward cargo  would  have  been  a  condition  precedent  to 
the  payment  of  the  freight  on  it,  had  not  the  plaintiff 
had  a  lien  on  the  cargo  by  virtue  of  which  he  was 
entitled  to  retain  it  until  the  freight  was  paid ;  but 
the  latter  fact  made  the  condition  concurrent.  On 
the  other  hand,  in  Peeters  v.  Opie,^  the  condition 
of  the  defendant's  promise  was  necessarily  precedent, 
whether  express  or  implied,  as  the  plaintiff's  promise 
was  incapable  of  being  performed  at  the  same  moment 
as  the  defendant's.  So  in  Giles  v.  Giles,^  the  perform- 
ance of  the  plaintiff's  promises  i-especting  the  tenancy 
could  not  be  a  concurrent  condition  of  the  defendant's 
promise  to  pay  the  200?.,  as  the  former  was  not  the 
consideration  for  the  latter ;  and  therefore  it  was 
necessarily  a  condition  precedent.  So  in  Jones  v. 
Barkley,*  the  delivery  of  the  assignment  and  release, 
and  in  Northrup  v.  Northrup,^  the  payment  of  the 
rent,  could  not  be  concurrent  conditions  for  the  reason 
stated  in  §  133,  and  therefore  they  were  precedent. 
In  Austin  v.  Jervoyse,^  it  seems  that  the  condition 
was  rightly  held  to  be  precedent.'' 

24  It  must  not  be  inferred  from  what  has  been 
said  that  there  can  never  be  express  concurrent  con- 
ditions in  a  bilateral  contract  except  where  the  law 
would  imply  them ;  for  mutual  promises  contained  in 

1  3  M.  &  S.  308,  Cas.  on  Contr.  639. 

2  2  Wms.  Saund.  350,  Cas.  on  Contr.  792. 
^  Supra. 

*  Dougl.  684.  Cas.  on  Contr.  901. 
6  6  Cow.  296,  Cas.  on  Contr.  721. 
6  Hobart,  69,  77,  Cas.  on  Contr.  790. 

'  Compare  Kingston  v.  Preston,  cited  in  Jones  v.  Barkley,  Dougl 
684,  689,  Cas.  on  Contr.  901,  905. 


30  CONCURRENT  CONDITIONS. 

separate  writings  constitute  a  bilateral  contract  in 
which  no  conditions  will  be  implied,  and  yet  each 
promise  may  be  expressly  conditional  upon  the  con- 
current performance  of  the  other.  Callonel  v.  Briggs  ^ 
is  an  example  of  this. 

25.  Concurrent  conditions  implied  in  fact  do  not 
often  occur  in  practice,  or,  rather,  questions  do  not  often 
arise  upon  them.  Such  conditions  always  exist,  how- 
ever, where  mutual  covenants  or  promises  are  in  their 
nature  dependent  on  each  other,  i.  e.  where  neither 
can  be  performed  unless  the  other  is  performed  at  the 
same  moment,  e.  g.  mutual  promises  to  marry.  There 
are  many  mutual  covenants  and  promises  which  are 
necessarily  dependent  on  each  other  to  a  certain  ex- 
tent, but  not  to  the  full  extent  that  they  are  depen- 
dent by  implication  of  law.  Thus,  in  the  case  of 
mutual  promises  to  buy  and  sell,  one  party  cannot 
buy  unless  the  other  will  sell,  and  conversely ;  and, 
therefore,  the  buying  and  selling  are  necessarily  de- 
pendent acts.  But  the  payment  of  the  price  is  not 
necessarily  dependent  upon  the  delivery  or  transfer 
of  the  property,  nor  conversely  ;  and,  therefore,  these 
latter  acts  are  dependent  only  by  implication  of  law. 
It  may  be  added  that  there  is  but  little  resemblance 
between  concurrent  conditions  implied  in  fact,  and 
those  which  are  implied  by  law,  and  therefore  what 
is  elsewhere  (133)  said  of  the  latter  has  little  applica- 
tion to  the  former. 

See  tits.  Conditions;  Conditions  Precedent;  Con- 
ditions Subsequent;  Dependent  and  Independent 
Covenants  and  Promises  ;  Performance  of  Con- 
ditions. 

1  1  Salk.  112,  Cas.  on  Contr.  722. 


CONDITIONS.  31 


CONDITIONS. 


26.  A  covenant  or  promise  is  conditional  when  its 
performance  depends  upon  a  future  and  uncertain 
event.  The  futurity  and  uncertainty  of  the  event 
have  reference  to  the  time  when  the  covenant  or 
promise  is  made.  If  the  event  has  then  ceased  to  be 
future  and  uncertain,  though  not  to  the  knowledge  of 
the  covenantor  or  promisor,  it  will  not  constitute  a 
condition.  Nor  is  it  sufficient  that  the  event  be  future, 
unless  it  be  also  uncertain ;  and  the  uncertainty  must 
not  be  merely  as  to  the  time  when  the  event  will 
happen,  but  as  to  whether  it  will  ever  happen.  It  is 
sufficient,  however,  that  the  event  is  uncertain,  for 
then  it  must  necessarily  be  future  also.  It  may  be 
an  event  over  which  neither  of  the  parties  has  any 
control,  or  it  may  be  one  within  the  control  of  the 
covenantee  or  promisee,  e.  g.  where  it  consists  in  his 
doing  or  not  doing  a  certain  act.  It  may  also  consist 
of  an  act  to  be  done  or  not  to  be  done  by  the  cov- 
enantor or  promisor,  e.  g.  where  one  covenants  or 
promises  to  do  a  specific  thing,  and  in  the  event  of 
his  not  doing  it  to  pay  -31,000  ;  but  it  cannot  depend 
upon  the  mere  will  and  pleasure  of  the  covenantor  or 
promisor,  for  such  an  event  would  destroy  the  covenant 
or  promise  instead  of  making  it   conditional.     Thu.s, 


32  CONDITIONS 

if  A  promise  B  to  buy  the  latter's  horse  at  such  a 
price  if  he  likes  him  after  a  week's  trial,  the  promise 
will  be  void  unless  it  can  be  interpreted  as  a  promise, 
for  example,  to  buy  the  horse  unless  a  week's  trial 
shall  bring  to  light  some  fault  in  him  of  which  the 
buyer  was  ignorant  when  he  made  the  promise.^ 

27.  A  covenant  or  promise  cannot  be  conditional 
unless  it  first  exist ;  it  is  only  the  performance  of  it 
that  the  condition  renders  uncertain.  An  event, 
therefore,  which  must  happen  before  a  covenant  or 
promise  is  made,  does  not  make  the  covenant  or 
promise  conditional.  If  the  event  happens,  the  cove- 
nant or  promise  is  absolute ;  if  it  does  not  happen, 
no  covenant  or  promise  is  made.  In  such  cases  the 
condition  is  made  when  the  offer  is  made,  and  the 
condition  is  annexed  to  the  offer,  and  becomes  a  part 
of  it ;  but  before  the  covenant  or  promise  is  made, 
the  event  has  ceased  to  be  uncertain,  and  hence  the 
condition  has  ceased  to  exist.  In  short,  it  is  the  offer, 
and  not  the  covenant  or  promise,  that  is  conditional. 
The  consideration  of  every  unilateral  promise  is  ne- 
cessarily a  condition  of  this  nature  until  it  is  given  or 
performed,  while  the  consideration  of  a  unilateral 
covenant  may  be  a  condition  of  the  covenant  or  of 
the  offer,  according  to  the  intention  of  the  cove- 
nantor.2 

28.  When  the  making  of  a  covenant  or  promise 
depends  upon  whether  a  certain  event  has  already 
happened,  there  is  no  condition  of  any  kind.  If  the 
event  has  happened,  the  covenant  or  promise  is  abso- 

1  Pothier,  Traite  rles  Obligations,  Part  2,  c.  3,  art.  1,  §  2. 

2  See  Lord  Stair,  cited  in  Thomson  v.  James,  18  Dunlop,  1,  17-18, 
Cas.  on  Contr.  125,  147. 


CONDITIONS.  33 

lute  from  the  beginning  ;  if  the  event  has  not  hap- 
pened, there  is  no  covenant  or  promise  at  all.  Thus^ 
in  Ollive  v.  Booker,^  the  court  having  decided  that 
the  defendant's  promise  to  take  the  vessel  depended 
upon  her  "having  sailed  three  weeks  ago,"  and  that 
event  not  having  happened,  it  necessarily  followed 
that  the  defendant  had  made  no  promise.  So  in  Behn 
V.  Burness,2  the  statement  that  the  vessel  was  "  now 
in  the  port  of  Amsterdam  "  being  untrue,  it  followed 
from  the  decision  of  the  court  that  the  defendant  had 
made  no  promise.^  If  the  question  had  arisen,  in 
either  of  these  cases,  whether  the  plaintiff  was  bound, 
it  would  have  presented  some  difficulty.  The  pre- 
sumption that,  in  a  bilateral  contract,  neither  party 
intends  to  be  bound  unless  the  other  is  also  bound 
(11)  would  seem  to  have  been  effectually  rebutted  by 
the  terms  of  the  charter-party;  but  it  would  have 
been  more  difficult  to  answer  the  objection  (the 
charter-party  not  having  been  under  seal  in  either 
case)  that  the  plaintiff's  promise  was  without  con- 
sideration (89). 

29.  As  the  event  which  is  to  render  a  covenant  or 
promise  conditional  must  not  happen  before  the  cove- 
nant or  promise  is  made,  so  it  must  not  happen  after 
it  is  performed ;  for  the  effect  of  the  condition  must 
be  to  render  the  performance  uncertain,  whereas  an 
event  happening  after  performance  cannot  affect  the 
covenant  or  promise  in  any  manner.  Conditions  can- 
not therefore  be  divided  into  classes  with  reference  to 
their  relation  in  point  of  time  either  to  the  making 

1  1  Exch.  416,  Cas.  on  Contr.  501. 

2  1  Best  &  S.  877,  3  Best  &  S.  751,  Cas.  on  Contr.  556. 
•  See  tit.  Notice. 

3 


34  CONDITIONS. 

or  to  the  performance  of  the  covenant  or  promise  ;  nor 
can  they,  with  reference  to  the  nature  of  the  event, 
for  any  uncertain  event  which  is  to  happen,  if  at  all, 
between  the  making  of  the  covenant  or  promise  and 
its  performance  (or  concurrently  with  the  latter  at 
latest)  may  constitute  a  condition  of  any  kind.  In 
truth,  the  division  of  conditions  into  conditions  prece- 
dent, concurrent  conditions,  and  conditions  subsequent, 
is  designed  to  mark  the  relation  in  point  of  time  be- 
tween the  event  which  constitutes  the  condition  and  the 
obligation  of  the  covenant  or  promise.  What  that  rela- 
tion is  in  any  given  case  depends  upon  when  the  obli- 
gation of  the  covenant  or  promise  is  to  arise,  and  that 
depends  upon  the  intention  of  the  covenantor  or  prom- 
isor. Thus,  if  the  covenant  or  promise  is  not  designed 
to  impose  any  obligation  or  confer  any  right  until  the 
event  happens,  the  condition  is  said  to  be  precedent, 
i.  e.  it  precedes  the  obligation  in  time.  So,  if  the 
covenant  or  pi'omise  is  designed  to  impose  an  obliga- 
tion and  confer  a  right  from  the  moment  when  it  is 
made,  and  so  before  the  event  happens,  the  condition 
is  said  to  be  subsequent,  ^.  e.  subsequent  in  time  to 
the  obligation.  Finally,  if  the  covenant  or  promise  is 
designed  to  impose  an  obligation  and  confer  a  right  at 
the  moment  when  the  event  happens,  the  condition  is 
said  to  be  concurrent,  i.  e.  concurrent  in  time  with 
the  obligation.  In  this  last  case  the  event  which  con- 
stitutes the  condition  always  consists  of  some  act  to 
be  done  by  the  covenantee  or  promisee,  and  the  object 
of  having  the  obligation  arise  at  the  very  moment 
when  the  event  happens  (rather  than  afterwards)  is 
to  enable  the  covenantee  or  promisee  to  insist  upon 
performance  of  the  covenant  or  promise  at  the  same 


CONDITIONS.  35 

moment  that  he  performs  the  condition  ;  and  it  is 
this  right  of  the  covenantee  or  promisee  that  consti- 
tutes the  chief  difference  between  conditions  precedent 
and  concurrent  conditions.  Hence  the  idea  has  nat- 
urally arisen  that  the  relation  in  time  between  the 
performance  of  the  covenant  or  promise  and  the  per- 
formance  of  the  condition  is  the  cause,  instead  of  the 
consequence,  of  the  condition's  being  concurrent. 

30.  Between  conditions  precedent  and  conditions 
subsequent  the  differences  are  important  and  radical.  fi/'Lc^^X^ 
In  case  of  a  condition  precedent,  as  the  obligation  to  *' 
perform  the  covenant  or  promise  does  not  arise  until 
the  event  happens,  of  course  until  then  there  can  be 
no  breach  of  the  obligation,  and  hence  no  action  can  be 
brought ;  and  when  an  action  is  brovight,  it  is  a  neces- 
sary part  of  the  plaintiff's  case  to  allege  and  prove 
that  the  event  has  happened.  In  the  case  of  a  condi- 
tion subsequent,  on  the  other  hand,  as  the  obligation 
to  perform  the  covenant  or  promise  arises  the  moment 
that  the  latter  is  made,  a  breach  of  the  obligation  has 
no  connection  with  the  happening  of  the  event,  and 
may  take  place  either  before  or  after  the  event  hap- 
pens. When  an  action  is  brought,  therefore,  the 
plaintiff  can  make  out  his  case  without  any  reference 
to  the  condition ;  and  if  in  truth  the  event  has  hap- 
pened, and  the  defendant  is  in  consequence  not  bound 
to  perform  his  covenant  or  promise,  the  burden  lies 
upon  him  to  allege  and  prove  that  fact.  A  condition 
subsequent,  therefore,  is  always  a  defence,  and  an 
affirmative  one.  While  the  performance  of  the  cove- 
nant or  promise  depends  upon  the  happening  of  the 
event  in  both  cases,  it  depends  upon  it  in  a  different 
sense  in  the  one  case  from  what  it  does  in  the  other : 


36  CONDITIONS. 

in  case  of  a  condition  precedent,  the  covenant  or 
promise  is  not  to  be  performed  unless  the  event  hap- 
pens ;  while,  in  the  case  of  a  condition  subsequent,  it 
is  not  to  be  performed  if  it  happens.  A  condition 
precedent  is  an  element  in  the  creation  of  an  obliga- 
tion ;  a  condition  subsequent  is  one  of  the  means  by 
which  an  obligation  is  extinguished. 

31.  When  it  is  said  that,  in  the  case  of  a  condition 
subsequent,  the  obligation  to  perform  arises  immedi- 
ately upon  the  making  of  the  covenant  or  promise,  it 
must  not  be  inferred  that  peformance  is  necessarily  to 
take  place  immediately.  An  obligation  may  exist 
now  to  do  a  thing  at  a  future  time,  and  it  may  or  may 
not  be  certain  when  that  time  will  arrive,  provided  it 
be  certain  that  it  will  arrive  some  time  ;  and  yet  the 
performance  of  that  obligation  may  be  liable  to  be 
defeated  by  a  condition  subsequent.  It  is  possible, 
therefore,  for  an  obligation  to  be  extinguished  by  a 
condition  subsequent  before  the  time  for  performing 
the  obligation  arrives,  and  hence  before  any  right  of 
action  accrues.  Yet  if  an  action  be  brought  after  the 
time  for  performance  arrives,  the  plaintiff  will  be  able 
to  state  and  prove  facts  which  will  entitle  him  to 
recover,  unless  the  defendant  sets  up  and  proves  his 
defence  arising  from  the  condition  subsequent. 

See  tits.  Concurrent  Conditions  :  Conditions  Pre- 
cedent; Conditions  Subsequent;  Dependknt  and 
Independent  Covenants  and  Promises  ;  Perform- 
ance of  Conditions. 


CONDITIOJSS  PRECEDENT.  87 


CONDITIONS   PRECEDENT. 


32.  Of  the  three  classes  into  which  conditions  are 
divided,  conditions  subsequent  seldom  occur,  and  con- 
current conditions  are  only  a  modified  form  of  condi- 
tions precedent.  The  latter,  therefore,  constitute 
the  typical  class  of  conditions,  and  when  the  term 
"  condition  "  is  used  without  qualification,  a  condition 
precedent  is  supposed  to  be  meant.  Any  uncertain 
event,  which  is  capable  of  being  a  condition  of  any 
kind,  may  be  a  condition  precedent,  but  generally  the 
event  consists  of  some  act  to  be  done  by  the  cove- 
nantee or  promisee.  This  act  may  be  one  which  the 
covenantee  or  promisee  is  under  no  obligation  to  per- 
form, as  is  always  the  case  where  there  is  only  one 
unilateral  contract  between  the  parties ;  or  it  may  be 
one  which  he  binds  himself  to  perform,  as  is  com- 
monly the  case  when  the  condition  is  contained  in  a 
bilateral  contract.  When  there  are  two  mutual  cove- 
nants or  promises,  each  of  which  is  absolute  in  terms, 
and  each  of  which  is  capable  of  being  performed 
without  the  other,  and  yet  one  of  them  is  subject  to 
the  condition  of  the  other's  being  performed  first,  the 
condition  is  necessarily  implied,  there  being  no  evi- 
dence of  any  actual  intention  to  make  the  covenant 
or   promise   conditional.      All    other   conditions   are 


88  CONDITIONS  PRECEDENT. 

founded  upon  the  actual  intention  of  the  covenantor 
or  promisor  in  each  case,  and  they  must,  therefore, 
be  contained  in  the  covenant  or  promise  to  which 
they  are  respectively  annexed.  A  condition,  however, 
may  be  contained  in  a  covenant  or  promise  in  two 
ways :  it  may  be  expressed  in  direct  terms  ;  or  the 
covenant  or  promise  may  be  of  such  a  nature,  or  may 
be  so  worded,  that  it  cannot  be  performed  until  some- 
thing has  been  done  by  the  covenantee  or  promisee. 
In  the  former  case  the  condition  is  express ;  in  the 
latter,  it  is  neither  express  in  the  same  sense  as  in 
the  former,  nor  implied  in  the  same  sense  as  in  the 
case  first  stated.  All  conditions,  however,  which  are 
not  expressed  in  terms  may  be  properly  said  to  be 
implied :  when  the  implication  is  not  founded  upon 
anything  contained  in  the  covenant  or  promise,  the 
condition  is  implied  by  law ;  when  the  implication  is 
founded  upon  something  contained  in  the  covenant  or 
promise,  the  condition  is  implied  in  fact.  According 
to  a  distinction  which  seems  to  be  well  founded,^  con- 
ditions implied  by  law  are  based  upon  the  construction 
of  the  covenant  or  promise,  while  conditions  implied 
in  fact  are  based  upon  its  interpretation.  Conditions 
implied  by  law  have  been  fully  considered  under 
another  title.^  It  only  remains,  therefore,  to  consider 
the  other  two  classes  of  conditions  precedent. 

33.  When  one  of  the  parties  to  a  contract  wishes 
to  secure  the  performance  of  some  act  by  the  other 
party,  or  the  happening  of  some  event  supposed  to 
be  in  the  power  of  the  other  party,  he  may  accomplish 
his  object  in  either  of  two  ways  ;  namely,  by  requii- 

1  Lieber,  Hermeneutics,  c.  1,  §  8,  c.  3,  §  2,  cc.  4,  5. 

2  See  tit.  Dependent  and  Independent  Covenakts  and 
Promisbs. 


CONDITIONS  PRECEDENT.  39 

ing  from  the  other  party  a  covenant  or  promise  to  do 
the  act,  or  that  the  event  shall  happen,  or  by  making 
his  own  covenant  or  jji'omise  expressly  conditional 
upon  the  performance  of  the  act  or  the  happening  of 
the  event.  If  he  adopts  the  former,  he  will  refuse  to 
covenant  or  promise  at  all  unless  the  other  party  also 
covenants  or  promises  at  the  same  time ;  if  he  adopts 
the  latter,  he  will  refuse  to  make  any  covenant  or 
promise  except  a  conditional  one,  and  unless  the  other 
party  will  accept  the  covenant  or  promise  with  the 
condition  annexed  to  it,  there  will  be  no  contract. 
When  attention  is  called  to  it,  the  distinction  seems 
very  obvious  between  a  promise  by  A  to  B  to  do  a 
certain  thing,  and  a  promise  by  B  to  A  on  condition 
that  A  shall  do  the  same  thing ;  but  it  is  a  distinction 
which  is  very  apt  to  be  overlooked.  When  parties  are 
making  a  contract,  their  attention  is  likely  to  be  occu- 
pied with  the  things  to  be  done  by  one  party  or  the 
other,  rather  than  with  the  security  that  each  is  to 
have  for  performance  by  the  other  ;  and  the  distinction 
between  a  covenant  or  promise  to  do  a  thing,  and  a 
condition  that  it  shall  be  done,  has  to  do  with  the 
latter  exclusively.  It  is  not  uncommon,  therefore,  for 
contracts,  especially  those  made  without  professional 
assistance,  to  contain  a  clause  requiring  a  certain  thing 
to  be  done  by  one  of  the  parties,  without  indicating 
at  all  how  the  other  is  to  compel  its  performance,  i.  e. 
without  indicating  whether  the  clause  is  intended  to 
be  a  covenant  or  promise,  or  a  condition.  For  exam- 
ple, if  the  subject  of  a  contract  be  a  certain  voyage 
to  be  made  by  a  certain  vessel,  and  it  be  stated  that 
the  vessel  shall  sail  (i.  e.  begin  the  voyage)  on  or 
before  a  certain  day,  it  will  be  clear  that  the  party 


40  CONDITIONS  PRECEDENT. 

who  is  to  navigate  and  control  the  vessel  is  the  one 
who  is  to  see  that  she  sails  by  the  day  named ;  but 
what  penalty  he  is  to  suffer  in  the  event  of  her  not 
so  sailing,  namely,  whether  he  is  to  become  liable  in 
damages  for  a  breach  of  contract,  or  to  lose  all  rights 
under  the  contract  against  the  other  party  by  a  breach 
of  condition,  will  not  appear  with  any  certainty  from 
the  mere  words,  as  they  are  consistent  with  either  view. 
Fortunately,  however,  there  is  another  clew  to  the  true 
interpretation  of  such  a  clause.  If  it  is  the  language  of 
the  party  alone  who  is  to  do  the  act,  it  can  only  be  a 
covenant  or  promise ;  if  it  is  the  language  of  the  other 
party  alone,  it  can  only  be  a  condition.  The  rule, 
therefore,  that  language  is  to  be  so  construed,  ut  res 
magis  valeat  quam  pereat,  will  be  decisive.  Moreover, 
the  words  of  such  a  clause  will  have,  in  fact,  a  differ- 
ent meaning,  according  to  the  party  who  uses  them. 
If  they  are  used  in  a  contract  by  the  party  who  is  to 
do  the  act,  they  plainly  import  that  he  binds  himself 
to  do  it ;  while,  if  they  are  used  by  the  party  for 
whose  benefit  the  act  is  to  be  done,  they  fairly  mean 
that  he  will  require  it  to  be  done,  i.  e.  that  his  own 
obligation  shall  be  conditional  upon  its  being  done. 
How  then  shall  it  be  ascertained  to  whom  the  lan- 
guage of  such  a  clause  is  to  be  imputed  ?  If  the 
contract  be  clearly  unilateral  (e.  g.  a  policy  of  insur- 
ance), of  course  the  answer  to  this  question  admits 
of  no  doubt.  In  such  a  contract  only  one  party  speaks, 
and  that  is  the  covenantor  or  promisor.  Any  clause, 
therefore,  in  a  policy  of  insurance,  requiring  any  act 
to  be  done  by  the  insured,  will  be  a  condition  of  the 
covenant  or  promise  of  insurance,  though  its  language 
may  more  naturally  import  a  covenant  or  promise  by 


CONDITIONS   PRECEDENT.  41 

the  insured.!  This  seems  to  be  the  true  reason  why 
the  clauses  in  marine  policies  of  insurance  commonly 
called  warranties  have  always  been  held  to  be  con- 
ditions. But  if  the  contract  be  bilateral,  the  question 
does  not  admit  of  so  unqualified  an  answer,  as  any 
clause  which  the  contract  contains  may  be  the  language 
of  either  party.  It  seems,  however,  that  a  clause  in 
a  bilateral  contract  which  simply  states  that  a  certain 
thing  shall  be  done,  or  that  a  certain  event  shall  hap- 
pen, or  has  happened,  must  be  taken  prima  facie  to 
be  the  language  of  the  party  who  is  to  do  the  act,  or 
within  whose  knowledge  or  power  the  event  is  sup- 
posed to  be.  Such  a  clause  clearly  cannot  be  imputed 
to  the  other  party,  unless  there  is  some  special  reason 
for  so  doing.  It  seems,  therefore,  that  a  clause  which 
would  be  a  warranty  in  a  marine  policy  of  insurance 
will  prirna  facie  be  a  stipulation  by  the  ship-owner  in 
a  charter-party ;  e.  g.  in  Glaholm  v.  Hays,^  Ollive  v. 
Booker,^  Oliver  v.  Fielden,*  and  Behn  v.  Burness.^  This 
view  may  be  adopted  without  impeaching  any  of  the 
foregoing  cases,  for  the  clause  upon  which  the  question 
arose  in  each  of  them,  assuming  it  to  be  a  stipulation 
on  the  part  of  the  plaintiff,  also  constituted  an  implied 
condition  of  the  covenant  or  promise  sued  on.^  It 
seems  that  a  bought  note  or  a  sold  note,  although  in 
strictness  a  part  of  a  bilateral  contract  (118),  is  to  be 

1  Worsley  v.  Wood,  6  T.  R.  710,  Gas.  on  Contr.  472 ;  Mason  v. 
Harvey,  8  Exch.  819,  Cas.  on  Contr.  530 ;  Roper  v.  Lendon,  1  El.  & 
El.  825,  Cas.  on  Contr.  546. 

2  2  M.  &  Gr.  257,  Cas.  on  Contr.  492. 

3  1  Exch.  416,  Cas.  on  Contr.  501. 

4  4  Exch.  135,  Cas.  on  Contr.  505. 

6  1  Best  &  S.  877,  3  Best  &  S.  751,  Cas.  on  Contr.  556. 
6  Compare  Grafton  v.  Eastern  Counties  Railway  Co.,  8  Exch.  699, 
Cas.  on  Contr.  527. 


42  CONDITIONS  PRECEDENT. 

treated  as  a  unilateral  contract  for  the  purposes  of 
the  present  question.  In  other  words,  a  bought  note 
is  the  language  of  the  buyer  alone,  as  a  sold  note  is 
the  language  of  the  seller  alone ;  and,  therefore,  if  a 
bought  note  requires  anything  to  be  done  by  the  seller, 
or  if  a  sold  note  requires  anything  to  be  done  by  the 
buyer,  the  doing  of  it  will  be  an  express  condition.^ 
In  Graves  v.  Legg  ^  it  is  not  expressly  stated  that  the 
contract  declared  on  was  contained  in  a  bought  note, 
but  it  may  safely  be  assumed  that  it  was,  and  therefore 
the  clause  upon  which  the  question  arose  constituted 
an  express  condition.  It  may  be  added,  that,  in  a 
bilateral  contract,  the  same  clause  may  be  to  some 
extent  the  language  of  both  parties,  and  so  be  both 
a  stipulation  and  an  express  condition  ;  but  it  seems 
that  that  can  only  be  where  the  clause  contains  some 
word  or  words  importing  a  condition,  and  some  other 
word  or  words  importing  a  stipulation,  e.  g.  in  Holder 
V.  Taylor,^  where  the  word  "  provided  "  made  an  ex- 
press condition,  and  the  word  "  agreed  "  made  a  stip- 
ulation ;  but  it  seems  that  such  a  construction  was  not 
admissible  in  either  of  the  cases  previously  cited  (the 
words  importing  a  stipulation  only),  nor  in  either  of 
the  following  cases,  the  words  importing  a  condition 
only  :  Thomas  v.  Cadwallader  ;  *  Neale  v.  RatclifE ;  ^ 
Anon.  ;  ^  Hays  v.  BickerstafEe ; ''  Dawson  v.  Dyer.^ 

1  Per  Tindal,  C.  J.,  in  Glaholiu  v.  Hays,  2  M.  &  Gr  257,  Cas  on 
Contr.  492,  496. 

2  9  Exch.  709,  Cas.  on  Contr.  532. 

8  1  Rol.  Abr.  518,  Cas.  on  Contr.  620. 
*  Willes,  496,  Cas.  on  Contr.  458. 
6  15  Q.  B.  916,  Cas.  on  Coutr.  510. 

6  4  Leon.  50,  Cas.  on  Contr.  443. 

7  2  Mod.  34,  Cas.  on  Contr.  630. 

8  5  B.  &  Ad.  584,  Cas.  on  Contr.  655. 


CONDITIONS  PRECEDENT.  43 

34.  When  a  bilateral  contract  consists  on  one  side 
in  doing  (faoiendo),  and  on  the  other  in  giving  (dando) 
in  payment,  and  the  payment  is  to  be  made  in  instal- 
ments, a  difference  is  to  be  obseryed  between  making 
the  instalments  payable  at  fixed  dates,  and  making 
them  payable  respectively  when  certain  portions  of 
the  other  side  of  the  contract  have  been  performed ; 
for  in  the  former  case  the  payments  will  be  subject  to 
no  condition  miless  a  condition  can  be  implied,  while  in 
the  latter  case  they  are  subject  to  an  express  condition. 
In  all  building  contracts,  therefore,  and  other  similar 
contracts,  in  which  payment  is  agreed  to  be  made  in 
instalments  as  the  work  progresses,  each  payment  is  sub- 
ject to  an  express  condition  ;  e.  g.  in  Terry  v.  Duntze,^ 
where  the  words  "  as  soon  as  "  plainly  made  an  express 
condition.  Hence  the  reasoning  of  Buller,  J.,  even  if  it 
had  been  correct  with  reference  to  implied  conditions, 
had  no  tendency  to  establish  the  conclusion  at  which 
he  arrived,  namely,  that  the  plaintiffs  were  "  entitled 
to  their  action  for  the  money  without  averring  per- 
formance." 

35.  In  Holdipp  v.  Otway  ^  the  words  "  as  soon  as  " 
made  the  settling  of  the  bills  of  costs,  as  therein  pro- 
vided for,  a  condition  precedent  to  the  defendant's 
obligation  to  pay.  So  in  Seeger  v.  Duthie  ^  the  clear- 
ing of  the  vessel  from  London  was  an  express  con- 
dition of  the  defendant's  promise  to  pay  the  600/. 
So  in  Braunstein  v.  Accidental  Death  Ins.  Co.  *  the 
defendant's  promise  to  pay  was  upon  the  express  con- 
dition that  the  amount  to  be  paid  be  ascertained,  in 

1  2  H.  Bl.  389,  Gas.  on  Contr.  634. 

2  2  Wins.  Saund.  106,  Gas.  on  Gontr.  445. 

8  29  L.  J.  G.  P.  253,  30  L.  J.  G.  P.  65,  Gas.  on  Contr.  691, 
*  1  Best  &  S.  782,  Gas.  on  Contr.  827. 


44  CONDITIONS  PRECEDENT. 

case  of  difference  or  dispute,  by  arbitration ;  and  it 
would  have  been  the  same,  though  the  contract  had 
been  bilateral,  and  there  had  been  a  mutual  agreement 
to  refer  disputes  to  arbitration. 

36.  When  a  conditional  promise  is  made  to  pay  a 
debt,  or  when  a  conditional  covenant  is  made  to  pay 
a  debt  which  the  covenant  itself  does  not  create,  though 
no  action  will  lie  on  the  promise  or  covenant  until  the 
condition  is  satisfied,  it  does  not  follow  that  an  action 
will  not  lie  for  the  debt  itself  without  regard  to  the 
condition.  Indeed,  as  the  promise  or  covenant  does 
not  create  the  debt,  it  follows  that  the  debt  will  not 
be  at  all  affected  by  any  condition  which  is  annexed 
to  the  covenant  or  promise  merely.  In  such  cases, 
therefore,  it  is  necessary  to  see  whether  the  condition 
is  annexed  to  the  debt  itself  as  well  as  to  the  promise 
or  covenant.  For  example,  if  in  a  lease  a  certain 
rent  be  reseiwed  to  the  lessor  without  condition  or 
qualification,  and  in  another  part  of  the  lease  the 
lessee  covenant  to  pay  the  rent  reserved  upon  a  cer- 
tain condition,  it  seems  that  the  condition  will  not 
affect  the  lessor's  right  to  recover  the  rent  by  an 
action  of  debt  or  by  distress,  since  that  right  is  not  at 
all  derived  from  the  covenant.  So  in  building  con- 
tracts the  ownei-'s  indebtedness  for  the  price  agreed 
upon  is  not  created  by  his  promise  to  pay  it,  but  by 
the  performance  of  the  work.  Such  indebtedness 
will  arise,  therefore,  and  become  payable  the  moment 
that  the  work  is  completely  performed,  unless  it  be 
expressly  made  conditional  or  the  payment  of  it  be 
expressly  postponed ;  and  it  does  not  necessarily  fol- 
low, because  the  owner  promises  to  pay  the  debt  upon 
a  condition,  e.g.  upon  the  production  pf  the  architect's 


CONDITIONS   PRECEDENT.  45 

certificate,  that  the  debt  itself  is  subject  to  the  same 
condition.  Such  a  condition  is  very  harsh  ;  for  it  not 
only  makes  the  payment  for  work  done  dependent 
upon  an  event  which  has  no  necessary  connection 
with  the  merit  of  the  work,  but  upon  an  event  which 
is  absolutely  within  the  power  of  a  person  employed 
and  paid  by  the  party  who  makes  the  condition.  The 
court  should  not,  therefore,  give  a  condition  such  a 
construction,  if  it  can  fairly  avoid  doing  so.  It  must 
be  admitted,  however,  that  a  condition  annexed  to  a 
promise  to  pay  a  debt  will  commonly,  upon  the  true 
construction  of  the  instrument  in  which  it  is  contained, 
extend  to  the  debt  itself.^  There  is  a  difference  also 
between  a  promise  to  pay  a  debt  on  a  certain  condition, 
and  a  proviso  that  the  debt  shall  be  payable  only  upon 
a  certain  condition ;  for  the  latter  necessarily  renders 
the  debt  itself  conditional.^  A  condition  which  makes 
the  payment  of  a  debt  dependent  upon  the  will  and 
pleasure  of  the  debtor  is  repugnant  to  the  debt  itself, 
and  hence  it  will  either  destroy  the  debt,  or  the  con- 
dition itself  will  be  void.-^  Therefore,  a  proviso  in  a 
contract  that  work  shall  not  be  paid  for  unless  it  be 
done  to  the  satisfaction  of  the  employer,  will  be  con- 
strued to  mean,  ut  res  magis  valeat  quam  pereat^  unless 
it  be  done  to  his  reasonable  satisfaction.*  But  this 
principle  is  not  applicable  to  a  proviso  that  work  shall 

1  See  Morgan  v.  Birnie,  9  Bing.  672,  Cas.  on  Contr.  487 ;  Clarke 
V.  Watson,  18  C.  B.  n.  s.  278,  Cas.  on  Contr.  572.  ' 

2  Milner  v.  Field,  5  Exch.  829,  Cas.  on  Contr.  516  ;  Batterbury  v. 
Vyse,  2  H.  &  C.  42,  Cas.  on  Contr.  835. 

3  Dallman  v.  King,  4  Bing.  N.  C.  105 ;  Pothier,  Traite  des  Obliga- 
tions, Part  2,  c.  3,  art.  1,  §  2. 

*  Dallman  v.  King,  supra;  Braunstein  v.  Accidental  Death  Ins.  Co., 
1  Best  &  S.  782,  Cas.  on  Contr.  827. 


46  CONDITIONS   PRECEDENT. 

not  be  paid  for  unless  it  be  done  to  the  satisfaction  of 
a  third  person,  though  such  third  person  be  emijloyed 
and  paid  by  the  party  who  makes  the  proviso,  and 
hence  must  be  presumed  to  be  in  his  interest. 

37.  In  Slater  v.  Stone,^  and  in  Bragg  v.  Nightingale,^ 
the  decision  of  the  court  illustrates  the  maxim.  Qui 
hceret  in  litera  hceret  in  cortice.  In  both  cases  alike 
the  lessee's  covenant  to  repair  was  clearly  subject  to 
the  express  condition  that  the  lessor  first  repair ;  and 
in  both  cases  alike  the  meaning  clearly  was  that  the 
lessor  should  deliver  the  premises  to  the  lessee  in  good 
repair  at  the  beginning  of  the  term,  and  then  that  the 
lessee  should  keep  them  in  good  repair  during  the 
term,  and  deliver  them  up  in  good  repair  at  the  end 
of  the  term.^ 

38.  An  instance  has  been  referred  to  already  (34) 
in  which  the  court  overlooked  or  disregarded  a  con- 
dition plainly  expressed ;  and  there  are  other  cases  in 
which  the  same  thing  has  happened.  Thus,  Boone  v. 
Eyre  *  contained  an  express  condition,  which  was  not 
noticed  by  the  court,  but  which  ought,  it  seems,  to 
have  been  deemed  conclusive  in  the  defendant's  favor. 
So  in  Hays  v.  Bickerstaffe,^  and  in  Dawson  v.  Dyer,^ 
the  defendant's  covenant  for  quiet  enjoyment  was 
subject  to  the  express  condition  of  the  plaintiff's  per- 
forming the  covenants  in  the  lease  on  his  part ;  yet, 
though  it  was  admitted  that  the  condition  had  not 
been  performed,  the  defendant  was   held  liable.     In 

1  Cro.  Jac.  645,  Cas.  on  Contr.  444. 

2  1  Rol.  Abr.  416,  pi.  15,  Cas.  on  Contr.  623. 

8  Compare  Neale  v.  Ratcliff,  15  Q.  B.  916,  Cas.  on  Contr.  510. 

*  1  H.  Bl.  273,  n.,  Cas.  on  Contr.  838. 

»  2  Mod.  34,  Cas.  on  Contr.  630. 

6  5  B.  &  Ad.  584,  Cas.  on  Contr.  655. 


CONDITIONS   PRECEDENT.  47 

the  latter  case  it  was  conceded  that  an  entry  by  the 
defendant  to  enforce  a  forfeiture  would  not  have  been 
a  breach  of  the  covenant  for  quiet  enjoyment;  but 
neither  the  covenant  nor  the  condition  made  any  dis- 
tinction between  an  entry  by  the  defendant  and  an 
entry  by  any  other  person  claiming  under  him,  nor 
between  an  entry  upon  the  ground  of  forfeiture  and 
an  entry  for  any  other  cause ;  nor  does  the  language 
of  either  the  covenant  or  the  condition  admit  of  any 
such  distinction  or  distinctions  being  made  by  con- 
struction. In  Hunlocke  v.  Blacklowe  ^  it  was  admitted 
tliat  the  words  "  in  consideration  of  the  performance 
thereof  "  would  have  made  performance  by  the  plaintiff 
a  condition  precedent  to  the  payment  of  the  annuity, 
but  for  the  fact  that  it  was  "  not  possible  for  the 
plaintiff  to  perform  his  covenant  in  his  lifetime." 
This,  however,  was  assuming  that  "•  performance,"  in 
the  clause  quoted  above,  could  only  mean  "  entire 
performance,"  whereas  the  true  construction  appears 
to  have  been  that  performance  by  the  plaintiff  to  the 
time  when  any  annual  sum  became  payable  was  a 
condition  precedent  to  its  payment  (129).  So  in 
Stavers  v.  Curling  ^  the  words  "  on  the  performance 
of  the  before-mentioned  terms  and  conditions  on  the 
part  of  the  plaintiff "  clearly  made  an  express  con- 
dition, and  yet  the  court  disregarded  them,  chiefly  on 
the  authority  of  Boone  v.  Eyre,  and  Hunlocke  v. 
Blacklowe,  and  decided  the  case  upon  principles  ap- 
plicable only  to  conditions  implied  by  law.  The  same 
thing  was  done  in  Newson  v.  Smythies,^  though  the 

1  2  Wms.  Saund.  156,  Cas.  on  Contr.  627. 

2  3  Bing.  N.  C.  355,  Cas.  on  Contr.  876. 
8  3  H.  &  N.  840,  Cas.  on  Contr.  882. 


48  CONDITIONS  PRECEDENT. 

condition  was  expressed  as  plainly  as  language  could 
express  it.  In  Pust  v.  Dowie,i  the  condition  was 
equally  plain,  and  it  seems  clear  that  it  was  annexed 
to  the  promise  to  pay  freight,  not  to  the  promise  to 
take  the  vessel ;  and  if  so,  it  was  impossible  to  main- 
tain an  action  on  the  former  promise,  if  the  condition 
had  not  been  complied  with  ;  nor  ought  the  plaintiff 
in  that  event  to  have  recovered  more  than  a  quantum 
meruit,  to  which  he  was  admitted  to  be  entitled.  The 
decision  on  appeal  involved  only  a  question  of  costs, 
as  the  plaintiff  proved  that  the  condition  had  been 
complied  with.^  The  case  of  Tidey  v.  Mollett^  might 
have  been  decided  upon  the  short  ground  that  the 
words  "  in  consideration  of  these  conditions  being 
fulfilled  "  rendered  the  defendant's  obligation  to  take 
the  house  expressly  conditional  upon  the  plaintiff's 
performing  before  the  14th  of  June  everything  that 
that  was  to  be  performed  by  him  before  that  date. 

39.  Sometimes  it  will  appear  from  the  entire  scope 
and  object  of  a  contract  that  a  covenant  or  promise 
which  is  not  conditional  in  terms  was  nevertheless 
intended  to  be  conditional ;  and  it  seems  that  the 
condition  should  in  such  a  case  be  deemed  express. 
Thus,  in  Bankart  v.  Bowers,'*  it  is  evident  that  the 
promises  contained  in  the  fifth  and  seventh  clauses  of 
the  agreement  were  intended  to  be  conditional  upon 
the  completion  of  the  purchase. 

40.  When  the  subject  of  a  covenant  or  promise  is 
divisible  in  its  nature,  and  a  condition  is  annexed  to 

1  32  L.  J.  Q.  B.  179,  34  L.  J.  Q.  B.  127,  Gas.  on  Contr.  893. 

2  See  5  Best  &  S.  20. 

8  33  L.  J.  C.  P.  235,  Gas.  on  Contr.  567. 
4  L.  R.  1  G.  P.  484,  Gas.  on  Contr.  753. 


CONDITIONS   PRECEDENT.  49 

the  covenant  or  promise,  the  subject  of  which  is  also 
divisible,  and  when  the  component  parts  of  the  latter 
are  capable  of  being  apportioned  to  the  component 
parts  of  the  former,  the  question  may  arise  whether 
the  performance  of  the  covenant  or  promise  and  the 
performance  of  the  condition  are  by  law  divisible  and 
apportionable  to  each  other,  so  that  the  performance 
of  any  part  of  the  covenant  or  promise  may  be  en- 
forced as  soon  as  the  corresponding  part  of  the  con- 
dition is  performed.  Such  a  question,  however,  must 
be  answered  in  the  negative.  A  covenant  or  promise 
is  only  what  the  covenantor  or  promisor  makes  it, 
and  he  makes  it  by  means  of  words  and  acts.  If  the 
meaning  of  the  latter  is  obscure  or  ambiguous,  the 
subject  about  which  they  are  employed  may  be 
resorted  to  as  a  means  of  interpreting  them  ;  but  if 
their  meaning  is  clear,  it  is  conclusive.  If,  therefore, 
X  covenants  or  promises  to  do  two  acts,  A  and  B, 
upon  the  happening  of  two  events,  C  and  D,  he  is  not 
bound  to  do  either  act  until  both  events  have  happened ; 
and  it  is  immaterial  that  event  C  relates  exclusively  to 
act  A,  and  event  D  exclusively  to  act  B,  for  the  mean- 
ing of  the  words  is  clear,  and  they  do  not  admit  of  any 
interpretation  which  will  make  them  mean  that  act  A 
shall  be  done  upon  the  happening  of  event  C,  and  act 
B  upon  the  happening  of  event  D.  Hence  the  case 
of  Neale  v.  Ratcliff  ^  should  have  been  decided  as  it 
was,  even  if  the  leased  property  had  consisted  of  two 
dwelling-houses,  wholly  separate  and  distinct  from 
each  other. 2 

41.  A  covenant  or  promise  which  cannot  be  per- 

1  15  Q.  B.  916,  Cas.  on  Contr.  510. 

2  See  Potliier,  Traite'  des  Obligations,  Part.  2,  c.  3,  art.  1,  §§  4,  6. 

4 


50  CONDITIONS  PRECEDENT. 

formed  except  upon  the  happening  of  a  certain  event 
is  necessarily  conditional  upon  the  happening  of  that 
event,  and  the  condition  may  be  said  to  be  implied  in 
fact.  The  necessity  for  making  the  implication  may 
be  found  either  in  the  language  of  the  covenant  or 
promise,  or  in  its  subject.^  Thus,  in  Raynay  v.  Alex- 
ander 2  the  defendant's  promise,  being  to  deliver  to 
the  plaintiff  fifteen  tods  of  wool  to  be  chosen  by  the 
plaintiff  out  of  seventeen  tods  in  the  defendant's 
possession,  was  necessarily  conditional  upon  the  plain- 
tiff's making  the  selection.  So  in  Thurnell  v.  Bal- 
birnie^  the  defendant's  promise,  being  to  purchase 
the  goods  in  question  at  a  valuation  to  be  made  by  the 
persons  named,  was  necessarily  conditional  upon  those 
persons  making  the  valuation.  So  in  Coombe  v. 
Greene  *  the  defendant's  covenant,  being  to  lay  out 
1001.  "under  the  direction  or  with  the  approbation 
of  some  competent  surveyor  to  be  named  by  the 
plaintiff,"  could  not  possibly  be  performed  until  the 
plaintiff  named  a  surveyor.  In  Rae  v.  Hackett  ^ 
the  defendant's  promise  was  (inter  alia)  that  the  ship 
in  question  "  should  sail  and  proceed  in  ballast  to  a 
safe  and  convenient  port  near  to  Cape  Town ;"  and,  as 
the  voyage  was  to  be  made  on  the  plaintiff's  account, 
it  necessarily  followed  that  the  port  was  to  be  selected 
by  the  plaintiff,  and  not  by  the  defendant;  and,  as 
the  vessel  could  not  sail  direct  to  a  port  selected  by 
the  plaintiff  near  to  Cape  Town  unless  the  port  was 

1  See  tit.  Notice. 

2  Yelv.  76,  Cas.  on  Contr.  443. 

8  2  M.  &  W.  786,  Cas.  on  Contr.  489. 
«  11  M.  &  W.  480,  Cas.  "on  Contr.  497. 
6  12  M.  &  W.  724,  Cas.  on  Contr.  499. 


CONDITIONS   PRECEDENT.  61 

selected  and  notice  of  it  given  to  the  defendant  before 
the  vessel  sailed,  it  necessarily  followed  that  the 
selecting  of  a  port  by  the  plaintiff,  and  giving  notice 
of  it  to  the  defendant,  was  a  condition  precedent  to 
the  vessel's  sailing.  If  it  be  said  that  the  plaintiff 
might  have  gone  in  the  vessel  himself,  or  might  have 
sent  a  supercargo,  the  answer  is  that  the  defendant 
did  not  agree  to  take  a  passenger,  and  hence  it  must 
be  assumed  that  he  would  not  do  so.  There  might  be 
good  reasons  also  for  the  defendant's  knowing  before 
the  vessel  sailed  what  port  she  was  expected  to  go 
to.  For  example,  the  plaintiff  might  select  a  port 
which  the  defendant  would  not  consider  as  coming 
within  the  terms  of  the  contract.  In  Armitage  v. 
Insole  ^  the  defendant's  promise,  being  to  give  the 
plaintiff  yearly  twenty  tons  of  coal,  "  to  be  put  free 
on  board  ship  at  Cardiff  for  the  use  of  the  plaintiff," 
could  not  be  performed  until  a  ship  was  provided  by 
the  plaintiff  and  notice  of  it  given  to  the  defendant. 
In  Ellen  v.  Topp,^  the  defendant  did  not  covenant 
that  the  apprentice  should  serve  the  defendant  gen- 
erally, but  only  as  an  apprentice  to  the  trade  which 
he  was  to  be  taught,  namely,  that  of  an  auctioneer, 
appraiser,  and  corn-factor,  and  the  apprentice  could 
not  so  serve  the  plaintiff  unless  the  latter  continued 
to  follow  that  trade,  and  the  whole  of  it.  Hence  the 
following  of  that  trade  by  the  plaintiff  was  a  condi- 
tion precedent  to  the  defendant's  obligation  that  the 
apprentice  should  serve.  In  Cadwell  v.  Blake  ^  the 
principle  upon  which   conditions  are  implied  in  fact 

1  14  Q.  B.  728,  Cas.  on  -Contr.  508. 

2  6  Exch.  424,  Cas.  on  Contr.  520. 
8  6  Gray,  402,  Cas.  on  Contr.  G09. 


62  CONDITIONS  PRECEDENT. 

was  very  clearly  stated,  but  it  seems  to  have  been 
misapplied  to  the  facts  of  that  case.  In  order  to  test 
the  question,  all  the  promises  on  the  part  of  the 
plaintiffs  must  be  left  out  of  view,  and  the  promise 
sued  on  must  alone  be  considered.  The  plaintiffs' 
promises  are  material  only  to  the  question  whether 
the  promise  sued  on  was  subject  to  a  condition  implied 
by  law,  —  a  question  which  has  been  considered  else- 
where (113).  Limiting  our  view,  then,  to  the  defend- 
ants' promise  to  pay  the  plaintiffs  $4,000  in  paper 
manufactured  by  the  process  in  question,  it  becomes 
clear  that  that  promise  was  subject  to  no  condition. 
There  is  no  necessary  implication,  nothing  more  than 
a  conjecture,  that  anything  was  to  be  done  by  the 
plaintiffs ;  the  defendants  took  the  whole  burden  of 
performance  on  themselves.  If  the  defendants  were 
unable  to  manufacture  the  paper  without  instructions 
from  the  plaintiffs,  they  should  have  made  the  giving 
of  instruction  an  express  condition ;  or  they  might 
have  promised  to  pay  in  paper  manufactured  by  them 
under  the  plaintiffs'  supervision  and  direction,  in 
which  case  there  would  have  been  a  condition  implied 
in  fact.  In  truth,  however,  the  clause  of  forfeiture 
contained  in  the  contract  gave  the  defendants  ample 
protection  against  the  consequences  of  any  refusal  to 
teach  on  the  part  of  the  plaintiffs. 

See  tits.  Conditions  ;  Concurrent  Conditions  ; 
Conditions  Subsequent  ;  Demand  ;  Dependent  and 
Independent  Covenants  and  Promises;  Notice; 
Performance   of   Conditions. 


CONDITIONS   SUBSEQUENT.  63 


CONDITIONS   SUBSEQUENT. 


42.  Conditions  may  be  annexed  to  transfers  of  prop- 
erty as  well  as  to  covenants  and  promises.  In  transfers 
of  property  conditions  subsequent  are  much  more 
common  and  familiar  than  conditions  precedent.  The 
latter,  indeed,  seldom  occur  except  in  special  instru- 
ments, such  as  wills  and  settlements,  while  the  former 
are  constantly  found  in  the  most  common  instruments 
of  conveyance.  For  example,  an  ordinary  mortgage, 
in  its  legal  aspects,  differs  from  an  ordinary  deed  of 
conveyance  only  in  containing  a  condition  subsequent, 
namely,  that  the  estate  or  interest  conveyed  shall  cease 
upon  the  payment  of  the  mortgage  debt,  with  interest, 
on  a  day  named.  So,  also,  leases  constantly  provide 
that  the  term  thereby  created  shall  cease  and  deter- 
mine in  the  event  of  the  lessee's  committing  a  breach 
of  any  of  the  covenants  in  the  lease  td  be  performed 
by  him.  In  this  respect,  however,  covenants  and 
promises  differ  widely  from  transfers  of  property, 
for  tlie  conditions  annexed  to  the  former  are  in  most 
cases  either  precedent  or  concurrent.  Any  event  may 
indeed  be  made  a  condition  subsequent  as  well  as  a 
condition  precedent ;  but  the  only  events  which  are 
in  fact  often  made  conditions  subsequent,  in  case  of 
covenants   or  promises,   are   those   which    render  the 


64  CONDITIONS   SUBSEQUENT. 

performance  of  the  covenant  or  promise  impossible, 
or  at  least  impracticable.  Moreover,  it  is  only  certain 
classes  of  covenants  and  promises  which  are  liable  to 
be  so  affected  ;  for  the  impossibility  and  impractica- 
bility referred  to  have  reference  to  the  nature  of  the 
thing  covenanted  or  promised  to  be  done,  and  not  to 
the  ability  of  the  covenantor  or  promisor.  For  exam- 
ple, the  law  supposes  that  a  covenant  or  promise  to 
pay  money  may  be  performed  notwithstanding  any 
event  that  can  possibly  happen,  while  the  performance 
of  a  covenant  or  promise  to  render  personal  service 
will  be  made  impossible  by  the  death  of  the  covenantor 
or  promisor  before  performance,  and  may  be  made 
impossible  or  impracticable  by  his  illness.  So  per- 
formance of  a  covenant  or  promise  to  transfer  specific 
property  will  be  impossible,  if  the  property  be  de- 
stroyed before  the  transfer  is  made.  In  the  two  cases 
last  put,  the  hardship  of  requiring  a  party  to  pay 
damages  for  non-performance  is  so  great  as  to  raise 
a  presumption  that  the  event  would  have  been  made 
a  condition  subsequent  if  it  had  been  foreseen,  and 
therefore  the  law  will  imply  the  condition.^  In  Elliott 
V.  Blake  ^  there  was  an  express  condition  subsequent. 
It  does  not  appear  whether  the  goods  were  specified 
by  the  contract  or  not ;  if  they  were  not,  that  is  an 
instance  of  an  event  being  made  a  condition  subsequent 
which  would  presumably  only  render  the  performance 
of  the  covenant  inconvenient.  Other  instances  of 
express  conditions  subsequent  will  be  found  in  the 
exceptions  commonly  introduced  into  charter-parties 
and  bills  of  lading,  by  which  the  carrier's  obligation 

1  See  Poussard  v.  Spiers,  1  Q.  B.  D.  410,  Cas.  on  Contr.  591,  594: 
Wells  V.  Calnan,  107  Mass.  514,  Cas.  on  Contr.  015,  617. 

2  1  Lev.  88,  Cas.  on  Contr.  771. 


CONDITIONS    SUBSEQUENT.  55 

to  deliver  the  goods  is  to  cease  in  the  event  of  their 
being  lost  or  destroyed  by  certain  enumerated  perils. 
Thus,  in  Storer  v.  Gordon, ^  the  carrier  was  exempted 
from  liability  for  not  delivering  the  outward  cargo  by 
the  exception  in  the  charter-party. 

43.  The  reasons  which  have  been  given  for  making 
certain  events  conditions  subsequent  of  course  have 
no  application  when  the  events  happen  after  the  cove- 
nant or  promise  is  broken,  and  when  the  cause  of 
action  has  already  arisen  ;  and  no  event  so  happening 
will  constitute  a  condition  by  implication.^  There  is 
nothing,  however,  to  prevent  a  covenantor  or  promisor 
from  providing  expressly  that  any  liability  which  he 
may  incur  by  a  breach  of  the  covenant  or  promise 
shall  cease  upon  the  happening  of  a  certain  event. 
Of  this  nature  is  the  clause  commonly  inserted  in 
policies  of  insurance  against  fire,  by  which  it  is  pro- 
vided that  the  liability  of  the  insurer  for  any  loss  shall 
cease,  unless  an  action  be  brought  to  enforce  it  within 
one  year  after  the  loss  happens.^  The  event  which 
constitutes  the  condition,  namely,  the  not  bringing  of 
an  action,  is  negative,  but  a  negative  event  may  con- 
stitute a  condition  as  well  as  a  positive  one.  The 
condition  in  this  case  is  not  indeed,  strictly  speaking, 
annexed  to  the  covenant  or  promise,  but  rather  to  the 
cause  of  action  arising  from  the  breach  of  the  covenant 
or  promise.  In  like  manner,  a  condition  may  be 
precedent,  not  because  it  precedes  the  obligation  cre- 
ated by  a  covenant  or  promise,  but  because  it  precedes 
the  right  of  action  arising  from  a  breach  of  the  obli- 

1  3  M.  &  S.  308,  Cas.  on  Contr.  639. 

2  See  Stubbs  v.  Holywell  Railway  Co.,  L.  R.  2  Exch.  311. 
'  See  Semmes  v.  Hartford  Ins.  Co.,  13  Wall.  158. 


66  CONDITIONS   SUBSEQUENT. 

gation.  Such  was  the  nature  of  the  condition  in 
Hotliam  V.  East  India  Co.^  The  covenant  by  the 
defendant  to  furnish  the  vessel  with  a  full  cargo  was 
unconditional,  but  the  plaintiff's  right  to  recover  for 
a  breach  of  that  covenant  was  expressly  conditional 
upon  his  first  proving  the  short  tonnage  by  a  certificate 
and  survey  in  the  manner  pointed  out  in  the  charter- 
party.  That  the  court  was  wrong  in  holding  the  con- 
dition to  be  a  subsequent  one,  seems  to  be  very  clear. 
The  performance  of  a  condition  subsequent  extin- 
guishes a  pre-existing  right,  while  the  performance 
of  the  condition  in  question  created  a  new  right. 
Nor  can  it  be  said  that  the  condition  here  was  nega- 
tive, namely,  the  not  procuring  of  a  certificate  and 
survey;  for  then  it  would  follow  that  the  plaintiff 
might  have  brought  an  action  the  moment  the  cove- 
nant was  broken,  and,  so  long  as  there  was  no  default 
in  the  plaintiff  in  not  performing  the  condition,  there 
would  have  been  no  defence  to  the  action.  It  is  clear, 
however,  that  no  action  would  lie  until  the  condition 
was  performed,  or  something  happened  to  excuse  its 
performance ;  and  if  an  action  had  been  brought,  for 
example,  before  the  vessel  arrived  in  the  Thames,  and 
hence  before  a  survey  could  be  had  in  accordance  with 
the  charter-party,  and  that  fact  had  appeared  upon 
the  face  of  the  declaration,  the  latter  would  have 
been  bad  on  general  demurrer.  Why?  Because  it 
would  have  appeared  that  a  condition  precedent  to 
the  right  of  action  could  not  have  been  performed. 

44.  In  an  action  upon  a  covenant  or  promise,  the 
burden  of  alleging  and  proving  the  performance  of  a 
condition  lies  upon  the  plaintiff  or  defendant  according 

1  1  T.  R.  Go8,  Cas.  on  Contr.  779. 


CONDITIONS   SUBSEQUENT.  57 

as  the  condition  is  precedent  or  subsequent,  unless  the 
covenant  or  promise  provides  otherwise.  It  is  com- 
petent, however,  for  the  parties  to  shift  the  burden 
by  providing  that  the  defendant  shall  have  the  burden 
of  alleging  and  proving  that  a  condition  precedent  has 
not  been  performed,  or  that  the  plaintiff  shall  have 
the  like  burden  in  case  of  a  condition  subsequent. 
The  mere  language  of  a  condition  will  not  indicate 
with  certainty,  therefore,  whether  it  is  precedent  or 
subsequent.  Thus,  the  condition  of  an  ordinary  bond 
is  always  subsequent  in  form,  i.  e.  it  provides  that  the 
bond  shall  be  void  on  the  happening  of  a  certain  event, 
and  accordingly  the  obligor  always  has  the  burden  of 
alleging  and  proving  that  the  event  has  happened. 
In  respect  to  the  rights  of  the  parties,  however,  the 
not  happening  of  the  event  is  clearly  intended  to  be 
a  condition  precedent ;  for  otherwise  an  action  might 
be  brought  immediately  upon  every  bond  that  is  given. 
Both  of  the  foregoing  positions  in  regard  to  bonds, 
namely,  that  no  action  will  lie  upon  them  until  the 
condition  is  broken,  and  that  the  defendant  has  the 
burden  of  alleging  and  proving  performance  of  the  con- 
dition, are  established  by  uniform  and  immemorial 
practice.^  Of  the  same  nature  was  the  condition  in 
Gray  v.  Gardner,^  and  therefore  it  was  rightly  held 
that  the  defendant  had  the  burden  of  proof ;  yet  the 
not  happening  of  the  event  in  question  was  clearly  a 
condition  precedent  to  the  plaintiff's  right  of  action. 

See  tits.  Conditions  ;  Conditions  Precedent  ;  Con- 
current Conditions;  Dependent  and  Independent 
Covenants  and  Promises. 

1  See  Cage  v.  Acton,  1  Ld.  Raym.  515,  Cas.  on  Contr.  772. 

2  17  Mass.  188,  Cas.  on  Contr.  785. 


58  CONSIDERATION. 


CONSIDERATION. 


45.  The  considei'ation  of  a  promise  is  the  thing  given 
or  done  by  the  promisee  in  exchange  for  the  promise. 

46.  It  is  a  familiar  rule  of  law  that  contracts  not  un- 
der seal  require  a  consideration  to  make  them  binding, 
while  contracts  under  seal  are  binding  without  a  con- 
sideration ;  and  hence  it  is  commonly  inferred  that  all 
contracts  not  under  seal  are  alike  in  respect  to  consid- 
eration. In  one  sense  this  inference  is  correct,  but  in 
another  sense  it  is  incorrect.  There  are  two  kinds  of 
consideration  known  to  the  law,  and  contracts  not 
under  seal  may  be  divided  into  two  classes,  according 
as  they  are  supported  by  the  one  or  the  other  of  these 
considerations  ;  and  yet  either  kind  of  consideration 
is  sufficient  to  render  any  contract  binding.  In  other 
words,  all  contracts  not  under  seal  are  alike  in  respect 
to  the  consideration  required  to  make  them  binding, 
but  whether  a  contract  belongs  to  the  one  or  the  other 
of  the  two  classes  above  referred  to  depends  upon  the 
kind  of  consideration  by  which  it  is  supported.  These 
two  classes  of  contracts  are  most  easily  distinguished 
by  the  actions  by  which  they  are  respectively  en- 
forced, the  action  of  debt  being  the  original  and 
proper   remedy  for  one    class,  and  the  action   of  as- 


CONSIDERATION.  59 

sumpsit  being   the  sole  remedy  for  the  other  class. 
The  former  class  has  existed  in  our  law  from  time 
immemorial;  the  latter  class  had  no  legal  existence 
(i.  e.  they  could  not  be  enforced  by  law)  until  the 
introduction  of  the  action  of  assumpsit,  it  having  been 
originally  the  sole  object  of  that  action  to  enforce  a 
class  of  contracts  for  which  there  was  previously  no 
remedy.     In  respect  to  consideration,  the  former  class 
of  contracts  requires  that  the  thing  given  or  done,  in 
exchange  for  the  obligation  assumed,  shall  be  given 
or  done  to  or  for  the  obligor  directly  ;  that  it  shall  be 
received  by  the  obligor  as  the  full  equivalent  for  the 
obligation  assumed,  and  be,  in  legal  contemplation,  his 
sole  motive  for  assuming  the  obligation  ;  and,  lastly, 
that  it  shall  be  actually  executed,  i.  e.  that  the  thing 
to  be  given  or  done  in  exchange  for  the  obligation  be 
actually  given  or  done,  it  not  being  sufficient  for  the 
obligee  to  become  bound  to  do  it.     Unless  there  is  a 
consideration   which   satisfies  each  of   these   require- 
ments,  debt  will  not  lie  ;  and  this   is  equivalent  to 
saying  that  there   is  no  binding   contract   according 
to    the    ancient   law.     Whether   there   is    a   binding 
contract  at  all,  or  not,  depends  upon  whether  there 
is  such  a  consideration  as  will  support  an  action  of 
assumpsit.     This  latter  kind  of  consideration  may  be 
best  described  negatively,  namely,  by  saying  that  it 
need  not  satisfy  any  one  of  the  requirements  before 
enumerated.     If  anything  whatever  (which  the  law 
can    notice)   be  given   or  done   in   exchange  for  the 
promise,  it  is  sufficient ;  and  therefore,  if  one  promise 
be   given    in    exchange    for    another    promise,    there 
is  a  sufficient  consideration   for  each.     It  is  obvious 
that  this  more  modern  species  of    consideration   was 


t)0  CONSIDERATION. 

derived  directly  from  the  more  ancient ;  that  in  truth 
it  is  tlie  ancient  consideration  relaxed  and  reduced  to 
a  minimum.  How  and  why  this  relaxation  took  place, 
it  is  not  difficult  to  see.  The  ancient  consideration 
was  required  for  the  creation  of  a  debt,  because 
"  debt "  was  the  name  given  to  the  contract  which 
had  been  borrowed  from  the  Roman  law.  A  debt 
(i.  e.  by  simple  contract)  could  be  created,  therefore, 
only  in  the  mode  in  which  a  real  contract  was  made 
by  the  Romans ;  and  the  consideration  in  case  of  a 
debt  corresponded  to  the  res  which  gave  the  name  to 
the  Roman  contract.^  The  consideration,  therefore, 
was  of  the  very  essence  of  a  debt,  —  was  in  fact  what 
created  it.  But  when  the  action  of  assumpsit  was 
introduced,  and  a  new  class  of  contracts  came  to  be 
enforced,  it  was  neither  necessary  nor  possible  to 
require  the  old  consideration  to  make  the  new  con- 
tracts binding.  It  was  not  necessary,  because  it  was 
neither  supposed  nor  claimed  that  the  new  contracts 
created  or  constituted  debts ;  and  it  was  not  possible, 
because  the  very  reason  why  a  new  action  was  required 
to  enforce  these  contracts  was  that  they  had  not  a 
sufficient  consideration  to  support  an  action  of  debt. 
Some  relaxation,  therefore,  was  indispensable  from 
the  beginning ;  and  the  process  having  begun,  there 
was  found  to  be  no  satisfactory  stopping-place  until 
the  result  already  stated  was  reached.  It  may  be 
urged  that  a  more  rational  course  would  have  been 
to  apply  the  maxim,  Cessante  ratione,  cessat  ipsa  lex, 
and  to  hold  that  the  action  of  assumpsit  required  no 
consideration  to  support  it.  To  this,  however,  it  may 
be  answered,  that  the  courts  could  not  change  the  law 
I  See  tit.  Debt. 


CONSIDERATION.  61 

by  their  own  authority ;  that  the  action  of  assumpsit 
was  the  creature  of  a  statute,^  and  was  limited  to  cases 
■which  were  anahjgous  to  cases  for  which  a  legal  rem- 
edy was  already  provided ;  that  promises  not  under 
seal  and  without  consideration  were  not  analogous  to 
any  contracts  which  had  ever  been  enforced,  and 
that  to  have  enforced  such  promises  would  have 
been  to  put  parol  contracts  on  the  same  footing 
"with  specialties. 

47.  But  whatever  may  have  been  the  merits  of  the 
question  originally,  it  was  long  since  conclusively  set- 
tled in  the  manner  stated  above ;  and  thus  the  action 
of  assumpsit  modified  the  old  consideration  instead 
of  wholly  superseding  it ;  but  so  important  were  the 
modifications  that  the  relationship  of  the  new  con- 
sideration to  the  old  has  been  almost  wholly  lost  sight 
of.  Nay,  the  old  consideration  itself  has  been  nearly 
lost  sight  of,  though  it  is  as  necessary  now  as  it  ever 
was  for  the  creation  of  a  debt  by  simple  contract. 
The  reason  is  obvious.  When  the  old  consideration 
ceased  to  be  necessary  to  the  validity  of  any  contract, 
it  lost  in  a  great  measure  its  practical  importance, 
except  to  lawyers ;  and  when,  by  degrees,  assumpsit 
had  superseded  debt  upon  simple  contract,  it  ceased 
to  attract  the  attention  even  of  lawyers.  The  result 
is,  that  the  term  "consideration"  has  practically 
changed  its  meaning  ;  having  formerly  meant  the  con- 
sideration necessary  to  create  a  debt,  it  now  means 
the  consideration  necessary  to  support  assumpsit.  It 
is  in  this  latter  sense  that  it  now  constitutes  an  im- 
portant branch  of  the  law  of  contracts,  and  is  the 
subject  of  the  second  chapter  of  the  writer's  collection 
1  13  Edw.  I.  c.  24. 


62  CONSIDERATION. 

of  Cases  on  Contracts.  The  old  consideration,  how- 
ever, should  never  be  lost  sight  of  by  the  student,  a? 
it  furnishes  the  best,  if  not  the  only,  key  to  the  intel- 
ligent understanding  of  the  new. 

48.  It  seems  that  there  are  promises  which,  though 
supported  by  a  sufficient  consideration,  cannot  be 
enforced  even  by  the  action  of  assumpsit.  The  object 
of  that  action  having  been  to  provide  a  remedy  for 
cases  which  had  hitherto  been  remediless,  it  was  origi- 
nally confined  to  cases  of  that  description ;  and  hence 
it  was  a  rule  that  it  would  not  lie  where  debt  would 
lie,  i.  e.  it  would  not  lie  on  a  promise  to  pay  a  sum  of 
money  which  constituted  a  debt ;  and  though  it  was 
extended  by  Slade's  Case,'  and  by  the  fiction  of  im- 
plied promises,  so  as  to  embrace  all  cases  of  simple- 
contract  debts,  it  seems  that  it  will  not  lie  to  this  day 
upon  a  promise  to  pay  a  debt  of  a  higher  nature  than 
a  simjale  contract.  A  promise,  therefore,  by  a  judg- 
ment debtor  to  pay  the  judgment,  or  by  a  tenant  to 
pay  his  rent,  or  by  a  bond-debtor  to  pay  the  bond, 
will  not,  it  seems,  though  made  for  a  good  considerar 
tion,  support  assumpsit.^ 

49.  It  has  been  said  that  every  contract  not  under 
seal  requires  a  consideration  to  support  it,  and  this  is 
strictly  true  as  to  contracts  of  common-law  origin ;  but 

1  4  Rep.  94  b. 

2  Sturlyn  v.  Albany,  Cro.  Eliz.  67,  Cas.  on  Contr.  191 ;  Anon., 
Cowp.  128,  Cas.  on  Contr.  249.  In  Barber  v.  Fox,  2  Wms.  Saund. 
136,  Cas.  on  Contr.  247,  the  action  was  on  a  promise  by  the  defendant 
to  pay  the  bond  of  his  ancestor  de  bonis  propriis,  whereas  an  action 
of  debt  upon  the  bond  would  only  have  lain  against  the  defendant 
as  heir,  and  a  judgment  in  such  an  action  could  have  been  satisfied 
only  out  of  assets  descended.  For  a  similar  reason  an  action  of  as- 
sumpsit will  lie  against  an  executor  on  a  promise  to  pay,  de  bonii 
yroprils,  a  bond  of  his  testator. 


CONSIDERATION.  63 

there  are  certain  contracts  which  owe  their  validity, 
in  England  and  in  this  country,  to  the  custom  of 
merchants ;  which  had  their  origin  in  countries  gov- 
erned by  the  civil  law,  and  to  which,  therefore,  the 
common  law  is  wholly  foreign.  To  this  class  of  con 
tracts  belong  bills  of  exchange  and  policies  of  insur- 
ance ;  and  promissory  notes  are  placed  by  statute  on 
the  same  footing  with  bills  of  exchange.  That  these 
contracts  are  binding  by  their  own  force,  and  therefore 
do  not  require  any  consideration,  is  very  clear  upon 
principle.  It  must  be  confessed,  however,  that  the 
generally  received  opinion  among  lawyers  is  other- 
wise, and  that  this  opinion  has  generally  found  ex- 
pression in  the  later  judicial  decisions  whenever  the 
question  has  been  directly  raised.  It  can  easily  be 
shown,  however,  that  this  opinion  is  irreconcilable 
with  the  nature  of  these  contracts,  even  when  judged 
by  our  law,  still  more  when  judged  by  the  custom  of 
merchants,  and  that  the  decisions  by  which  it  is  sup- 
ported, if  they  cannot  be  pronounced  erroneous,  must 
at  least  be  deemed  anomalous.  It  would  not  be 
proper  to  discuss  such  a  question  at  length  in  this 
place,  but  neither  is  it  proper  to  pass  it  over  entirely ; 
for  though  the  opinion  and  the  decisions  in  question 
derive  their  greatest  importance  from  their  bearing 
on  the  contracts  to  which  they  relate,  yet  much  of  the 
error  and  confusion  which  pervade  the  subject  of  con- 
sideration had  their  origin  in  vain  attempts  to  find  a 
consideration  where  none  was  necessary,  and  where 
there  was  none  in  fact. 

50.  Probably  it  would  never  have  been  held  that 
bills  of  exchange  and  promissory  notes  require  a  con- 
bideration,  but  for  the  attempt  of  Lord  Mansfield  to 


04  CONSIDERATION. 

establish  the  doctrine  that  consideration  was  required 
only  as  evidence  of  deliberate  intention  on  the  part 
of  the  promisor,  and  hence  that  none  was  necessary 
when  the  promise  was  in  writing. ^  It  was  with  refer- 
ence to  this  notion  that  Skynner,  C.  B.,  in  delivering 
the  opinion  of  all  the  judges  in  Rann  v.  Hughes,^  used 
the  oft-quoted  words  :  "  All  contracts  are,  by  the  law 
of  England,  distinguished  into  agreements  by  specialty 
and  agreements  by  parol ;  nor  is  there  any  such  third 
class,  as  some  of  the  counsel  have  endeavored  to 
maintain,  as  contracts  in  writing.  If  they  be  merely 
written  and  not  specialties,  they  are  parol,  and  a  con- 
sideration must  be  proved."  Since  this  opinion  was 
delivered  it  seems  to  have  been  regarded  as  a  fore- 
gone conclusion  that  bills  of  exchange  and  promissory 
notes  must  be  classed  with  parol  contracts,  whatever 
might  be  the  consequences.  That  no  such  view  had 
previously  prevailed,  Pillans  v.  Van  Mierop  seems  to 
furnish  sufficient  evidence.  When  it  is  said  that  a 
promise,  which  in  common  parlance  is  said  to  be  in 
writing,  is  in  law  parol,  the  meaning  is  that  the  writ- 
ing is  mere  evidence  of  the  promise,  which  in  legal 
contemplation  is  made  orally  (118).  But  it  is  impos- 
sible to  hold  that  the  contracts  now  in  question  are 
parol  in  any  such  sense.  A  bill  of  exchange  is  not 
evidence  of  a  contract  in  any  other  sense  than  a  deed 
is ;  it  is  the  contract  itself,  and  is  binding  by  its  own 
force.  Proofs  of  this  are  innumerable,  but  the  follow- 
ing will  suffice  for  the  present  purpose  :  —  1.  Declara- 

1  Pillans  V.  Van  Mierop,  3  Burr.  16G3,  Cas.  on  Contr.  177,  181,  182, 
183;  Williamson  v.  Losh,  Chitty  on  Bills  (9th  ed.),  p.  75,  n.  (x), 
Cas.  on  Contr.  186. 

2  7  T.  R.  350,  n.  (a),  Cas.  on  Contr.  187. 


CONSIDERATION.  65 

tions  in  assumpsit  on  bills  of  exchange  and  promissory 
notes  liave  always  been  founded  on  a  promise  implied 
by  law,  the  plaintiff  first  stating  the  making  of  the 
instrument,  with  the  other  necessary  facts,  and  then 
deducing  therefrom  the  conclusion  that  the  defendant 
became  liable,  and  in  consideration  of  his  being  so 
liable,  he  promised.  There  is  but  one  possible  way 
of  supporting  such  a  declaration,  on  the  supposition 
that  a  consideration  is  necessary,  namely,  by  holding 
that  the  law  presumes  a  consideration,  and  thus 
throws  upon  the  defendant  the  burthen  of  alleging 
and  proving  a  want  of  consideration.  But  this  would 
be  merely  to  attempt  to  cure  one  error  by  committing 
another.  2.  A  promissory  note,  payable  at  a  future 
day,  and  given  in  payment  of  a  pre-existing  debt 
already  payable,  would  be  invalid,  on  the  supposition 
that  it  requires  a  consideration. ^  3.  The  payee  of  a 
bill  of  exchange  could  never  maintain  an  action 
against  the  acceptor,  if  the  acceptance  required  a 
consideration  ;  for  he  sues  on  a  contract  made  directly 
with  himself,  and  for  which  he  gives  no  consideration. 
4.  If  bills  of  exchange  and  promissory  notes  were 
mere  parol  promises,  the  holder  could  only  sue  on  the 
original  consideration  for  which  they  were  given  ;  and 
they  could  not  by  their  own  force  create  debts ;  the 
contrary  of  which  is,  however,  well  established.^  5.  It 
is  well  established  that  a  bill  or  note  given  for  a  debt 
operates  as  payment,  unless  defaidt  be  made  in  paying 
it  when  it  becomes  due,  the  creditor  not  having  trans- 
ferred it,  and  not  having  been  guilty  of  any  laches  ; 
which  shows  that  such  an  instrument  is  of  a  highei 

1  Hopkins  v.  Logan,  5  M.  &  W.  241,  Gas.  on  Contr.  421 

2  Hatch  y.Trayes,  11  Ad.  &  El.  702. 

5 


66  CONSIDERATION. 

nature  than  a  simple  contract,  and  in  the  nature  of  a 
specialty.  That  it  is  not  held  to  operate  as  an  abso- 
lute payment  merely  shows  that  the  courts  have  failed 
to  carry  a  true  doctrine  to  its  full  extent. 

51.  As  to  policies  of  insurance,  the  question  whether 
they  require  a  consideration  seems  not  to  have  been 
the  subject  of  express  decision,  though  it  has  generally 
been  supposed  that  they  do.  The  following  reasons, 
however,  seem  to  be  sufficient  for  believing  that  upon 
principle  they  do  not:  1.  Immediately  upon  the  issu- 
ing of  a  policy,  the  premium,  if  not  paid,  becomes  a 
debt.  This  debt  must  be  created  by  the  policy  alone, 
for  there  is  nothing  else  to  create  it ;  and  yet  this 
would  be  impossible  if  a  policy  were  a  mere  parol 
promise.^  2.  In  all  cases  where  the  premium  is  not 
paid  at  the  time  of  issuing  the  policy,  there  is  no 
consideration  in  fact  for  the  policy ;  for  it  is  quite 
out  of  the  question  to  hold  that  the  consideration  of 
the  policy  is  a  promise  to  pay  the  premium.  A  mutual 
agreement  for  an  insurance  is  undoubtedly  supported 
by  the  consideration  of  mutual  promises,  but  that 
agreement  is  fully  performed  by  the  insurer  when  he 
issues  the  policy.  To  hold  that  there  are  mutual 
promises  after  the  policy  is  issued  would  be  to  hold 
that  the  issuing  of  the  policy  does  not  at  all  change 
the  legal  relations  of  the  parties.  3.  The  practice  of 
resorting  to  equity  to  compel  the  issuing  of  a  policy 
pursuant  to  agreement  ^  cannot  be  accounted  for  except 
upon  the  theory  that  a  policy  of  insurance  is  of  a 
different  nature  from  a  mere  promise  to  insure. 

1  See  tit.  Debt. 

2  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390,  Cas.  on  Contr 
106. 


CONSIDEKATION.  (57 

52.  It  must  be  borne  in  mind  that  the  custom  of 
merchants  does  not  attach  to  a  mere  agreement  to 
issue  a  policy  of  insurance  or  to  give  a  bill  or  note ; 
it  only  attaches  to  the  instrument  when  issued.  Nor 
must  a  want  of  consideration  be  confounded  with  a 
failure  of  consideration.  To  the  latter  the  foregoing 
observations  have  no  application. 

53.  Having  disposed  of  the  foregoing  preliminary 
questions,  it  remains  to  consider  in  detail  the  requisites 
of  a  consideration  to  support  assumpsit.  This  will 
be  done  under  the  following  heads  :  — 1.  Adequacy  of 
Consideration.  .2.  Consideration  and  Motive^  3.  From_ 
whom  the  Consideration  must  move.  4.  To  whom 
the  Consideration  must  move.  5.  Mujbual_jiQnsfiilt_as_ 
an  element__of_  Consideration ,  6.  Relation  in  Time 
of  the  Considerationjto_the  IJLQmise.     7.  Moral^on^ 

""BJderation.     STT^onsideration  void  in  part.    9.  Mutual 
Promises.     10.  Executed  Consideration. 

1.   Adequacy  of  Consideration. 

54.  It  has  been  seen  that  a  consideration  to  create 
a  debt  must,  in  legal  contemplation,  be  commensurate 
with  the  debt,  but  that  anything  which  the  law  can 
notice  will,  so  far  as  regards  its  extent  or  value,  be 
sufficient  to  support  assumpsit.  Thus,  it  has  been 
held  by  high  authority  that  a  piece  of  paper  upon 
which  a  void  contract  has  been  written  is  a  sufficient 
consideration  for  a  guaranty  of  10,000Z.^  So  the 
execution  and  delivery  of  a  deed  of  release  or  a  deed 
of  grant  will  be  a  sufficient  consideration  for  a  prom- 
ise, though  the  promisee  had  nothing  to  release  or  to 

1  Haigh  V.  Brooks,  10  Ad.  &  El.  309,  323,  Cas.  on  Contr.  210. 


68  CONSIDERATION. 

grant.^  So  the  showing  of  a  deed,^  or  entering  into 
a  contract,^  or  proving  that  the  promisee  has  a  right 
of  action,*  or  stating  an  account,^  or  giving  a  bond  of 
indemnity,^  or  making  an  affidavit,''  or  parting  with  a 
letter  which  belongs  to  the  promisee,^  or  permitting 
boilers  belonging  to  the  promisee  to  be  weighed,^  will 
be  a  sufficient  consideration.  On  the  other  hand,  a 
verbal  transfer  of  a  thing  which  can  be  transferred 
only  by  deed  (e.  g.  an  incorporeal  hereditament),  or 
a  verbal  surrender  of  a  thing  which  can  be  surrendered 
only  by  deed  (g.  g.  a  right  of  action),  will  not  consti- 
tute any  consideration.^*^  For  this  reason  it  seems  that 
the  first  ground  upon  which  the  decision  in  Haigh  v. 
Brooks  ^^  was  based  is  untenable.  So  a  verbal  surren- 
der of  a  thing  which  is  by  law  incapable  of  being 
surrendered  (e.  g.  an  estate  at  will)  will  not  be  a 
consideration. ^2  gQ  t,]ie  doing  of  any  act  which  the 
promisee  would  be  liable  to  an  action  of  tort  for  not 
doing  (e.  g.  discharging  a  prisoner  from  illegal  im- 
prisonment) will  not  be  a  consideration  ;  and  it  is 
immaterial  whether  the  liability  would  be  to  the 
promisor  or  to  some  third  person. ^^   But  the  discharge 

1  See  Barnard  v.  Simons,  1  Rol.  Abr.  26,  pi.  39,  Cas.  on  Contr.  1!}4. 

2  Sturlyn  v.  Albany,  Cro.  Eiiz.  67,  Cas.  on  Contr.  191. 
8  Bret  V.  J.  S.,  Cro.  Eiiz.  756,  Cas.  on  Contr.  192. 

*  Traver  v. ,  1  Sid.  57,  Cas.  on  Contr.  194. 

^  Havves  v.  Smith,  2  Lev.  122,  Cas.  on  Contr.  195. 

6  Williamson  v.  Clements,  1  Taunt.  623,  Cas.  on  Contr.  197. 

7  Brooks  V.  Ball,  18  Johns.  337,  Cas.  on  Contr.  200. 

8  Wilkinson  v.  Oliveira,  1  Bing.  N.  C.  490,  Cas.  on  Contr.  208. 

9  Bainbridge  v.  Firmstone,  8  Ad.  &  El.  743,  Cas.  on  Contr.  209. 

•0  See  Barnard  v.  Simons,  1  Rol.  Abr.  2G,  pi.  39,  Cas.  on  Contr.  194 
"  10  Ad.  &  El.  309,  323,  Cas.  on  Contr.  210,  220. 

12  Kent  V.  Pratt,  1  Rol.  Abr.  23,  pi.  27,  28,  Cas.  on  Contr.  193. 

13  Atkinson  v.  Scttree,  Willus,  482,  Cas.  on  Contr.  190;  Herring  V 
Dorell,  8  Dowl.  P.  C.  004,  Cas.  on  Contr.  222. 


CONSIDERATION.  69 

of  a  prisoner  from  lawful  imprisonment  is  a  good  con- 
sideration, though  there  were  in  truth  no  ground  for 
the  imprisonment,  and  the  prisoner  would  eventually 
have  obtained  his  discharge  for  that  reason  ;  e.  g.  where 
a  defendant  is  imprisoned  in  a  civil  action  which  is 
not  well  founded,  and  yet  the  imprisonment,  not  being 
malicious  and  without  probable  cause,  is  not  illegal.' 
The  same  principle  also  applies  to  the  discharge  of 
property  from  a  lawful  attach ment.^  Again,  the 
doing  of  a  thing  which  the  promisee  is  already  bound 
to  the  promisor  to  do  is  clearly  no  consideration. 
Thus,  payment  of  a  judgment  by  the  judgment  debtor 
is  no  consideration  for  a  promise  by  the  judgment 
creditor.^  And  the  same  principle  seems  to  apply 
when  the  promisee  is  under  an  obligation  to  a  third 
person  to  do  the  thing  in  question  ;  for  there  is  then 
a  conclusive  presumption  of  law  that  he  does  it  in 
discharge  of  his  previous  obligation,  and  not  as  a 
consideration  of  a  new  promise.  It  seems,  therefore, 
that  the  decision  in  Shadwell  v.  Shadwell,*  and  in 
Scotson  V.  Pegg,^  cannot  be  supported.  On  the  same 
principle,  the  performance  of  official  duty  can  never 
be  a  consideration  for  a  promise  ;  but  in  England  v. 
Davidson,^  it  was  properly  held  that  the  plaintiff's 
being  a  constable  did  not  disable  him  from  recovering 
a  reward  offered  to  any  pei'son  who  would  give  such 
information  as  should  lead  to  the  conviction  of  the 
perpetrator  of  a  certain  crime,  it   not    being  shown 

1  Smith  V.  Monteith,  18  M.  &  W.  427,  Cas.  on  Contr.  225. 

2  Longridge  v.  Dorville,  5  B.  &  Aid.  117,  Cas.  on  Contr.  285 
8  Dixon  V.  Adams,  Cro.  Eliz.  -538,  Cas.  on  Contr.  191. 

*  30  L.  J.  C.  P.  145,  Cas.  on  Contr.  233. 
6  6  H.  &  N.  295,  Cas.  on  Contr.  240. 

•  11  Ad.  &  El.  856,  Cas.  on  Contr.  220. 


70  CONSIDERATION. 

that  everything  involved  in  giving  such  information 
came  within  the  plaintiff's  official  duty.  The  payment 
of  a  well-founded  claim  will  be  a  sufficient  considera- 
tion for  a  promise,  if  the  claim  was  unliquidated,  or 
if  for  any  other  reason  it  does  not  appear  that  the 
full  amount  paid  was  due.^  Where  the  consideration 
of  a  promise  is  the  payment  of  money,  it  is  of  course 
no  objection  to  the  consideration  that  the  promisee 
already  owed  the  promisor  the  full  amount  paid,  if 
the  money  was  not  paid  in  satisfaction  of  the  previous 
debt.  Therefore,  there  was  a  good  consideration  in 
Reynolds  v.  Pinhowe,^  the  4/.  not  appearing  to  have 
been  paid  in  satisfaction  of  the  judgment.  The  small- 
est sum  of  money  is  a  sufficient  consideration  for  a 
promise  to  acknowledge  satisfaction  of  a  judgment  for 
the  largest  sum. 

55.  There  is  one  case  in  which  the  law  makes  no 
distinction  between  debt  and  assumpsit  in  respect  to 
consideration,  namely,  when  the  consideration  is  the 
payment  of  money,  and  the  promise  also  is  to  pay 
money  unconditionally  and  upon  request,  %.  e.  immedi- 
ately. One  dollar  is  a  sufficient  consideration  for  a 
promise  to  pay  one  thousand  dollars  at  some  future 
day  or  upon  the  happening  of  some  uncertain  event; 
but  it  is  only  a  sufficient  consideration  for  a  general 
and  unqualified  promise  to  pay  one  dollar.  The  reason 
of  this  distinction  seems  to  be  that  the  law  has  never 
in  theory  abandoned  the  principle  that  a  consideration 
must  be  commensurate  with  the  obligation  which  is 
given  in  exchange  for  it ;  that,  though  the  smallest 
consideration  will  in  most  cases  support  the  largest 

1  Wilkinson  v.  Byers,  1  Ad.  &  El.  lOG,  Cas.  on  Contr.  203. 

2  Cro.  Eliz.  429,  Cas.  on  Contr.  191. 


CONSIDERATION.  71 

promise,  this  is  only  because  the  law  shuts  its  eyes  to 
the  inequality  between  them  ;  and  hence  any  inequal- 
ity to  which  the  law  cannot  shut  its  eyes  is  fatal  to 
the  validity  of  the  promise.  The  value  of  most  con- 
siderations, as  well  as  of  most  promises,  is  a  thing 
which  the  law  cannot  measure ;  it  is  not  merely  a 
matter  of  fact,  but  a  matter  of  opinion.  If,  therefore, 
the  promisor  thinks  the  consideration  is  equal  to  the 
promise  in  value  (z.  e.  if  he  is  willing  to  give  the 
promise  for  the  sake  of  getting  the  consideration), 
the  consideration  will  be  equal  to  the  promise  in  value 
for  all  the  purposes  of  the  contract.  From  this  it  is 
but  an  easy  step  to  the  conclusion  that,  whatever  a 
promisor  chooses  to  accept  as  the  consideration  of  his 
promise,  the  law  will  regard  as  equal  to  the  promise 
in  value,  provided  the  law  can  see  that  it  has  any 
value.  But  this  reasoning  is  obviously  inapplicable 
to  a  case  in  which  the  value  both  of  the  consideration 
and  of  the  promise  is  conclusively  fixed  by  law ;  and 
a  promise  to  pay  money  in  consideration  of  a  payment 
of  money  is  such  a  case,  provided  the  elements  of 
time  and  uncertainty  be  wholly  excluded.  Therefore, 
in  such  a  case  there  must  be  in  fact  what  there  always 
is  in  theory,  namely,  a  perfect  equality  in  value  be- 
tween the  consideration  and  the  promise.  That  such 
equality  always  exists  in  theory  seems  to  be  pretty 
clear.  In  other  words,  the  promise  is  in  legal  con- 
templation given  and  received  in  exchange  for  the 
consideration,  and  for  no  other  purpose.  Therefore, 
a  promise  can  never  constitute  a  gift  from  the  prom- 
isor to  the  promisee  as  to  any  part  of  it.  Nor  can  it 
operate  as  a  satisfaction  of  any  claim  or  demand  which 
the  promisee  has  against  the  promisor  ;  for  such  must 


72  CONSIDERATION. 

still  be  considered  to  be  the  rule  of  law,  notwith- 
standing some  modern  dicta  to  the  contrary ;  e.  g.  in 
Crowther  v.  Farrer,^  Evans  v.  Powis,^  and  Hall  v. 
Flocton.3  This  also  perhaps  furnishes  the  best  ex- 
planation of  the  rule  that  the  consideration  of  a 
promise  must  move  from  the  promisee.  Regarded 
simply  as  an  inducement  to  the  promisor  to  make 
the  promise,  it  is  not  material  from  whom  the  con- 
sideration comes ;  but  if  it  comes  from  any  other 
person  than  the  promisee,  the  promise  is  not  given 
in  exchange  for  the  consideration,  but  is  in  law  a  gift 
to  the  promisee.  Therefore,  such  a  consideration  is 
not  good. 

56.  Forbearing  to  prosecute  a  claim  at  law  is  a 
good  consideration  for  a  promise,  if  the  claim  be  well 
founded,  but  not  otherwise  ;  for  though  one  has  the 
power  to  sue  upon  an  unfounded  claim,  it  is  only  upon 
the  terms  of  fully  indemnifying  the  defendant  in  costs. 
At  least,  the  law  regards  the  costs  as  a  full  indemnity, 
and  must  so  regard  them.  When,  therefore,  forbear- 
ance to  sue  is  the  consideration  of  a  promise,  the 
plaintiff  must  show  in  his  declaration,  and  prove 
upon  the  trial,  that  he  had  a  good  cause  of  action. 
For  this  reason  the  declaration  in  Edwards  v.  Baugli  * 
Avas  bad.  So  forbearance  to  sue  an  heir  on  the  bond 
of  his  ancestor  is  not  a  good  consideration,  unless  it 
appears  that  the  heir  was  expressly  named  in  the 
bond ;  for  otherwise  he  is  not  liable.^     So  forbearing 

1  15  Q.  B.  677,  Cas.  on  Contr.  301. 

2  1  Exch.  601,  607. 
8  16  Q.  B.  1039. 

*  11  M.  &  W.  641,  Cas.  on  Contr.  290. 

^  Barber  v.  Fox,  2  Wms.  Sauml.  13(5,  Cas.  on  Oonlr.  247. 


CONSIDERATION.  73 

to  sue  on  a  note  given  by  a  feme  covert  is  no  consider- 
ation, for  such  a  note  is  void.^  So  forbearing  to  sue 
for  a  debt  due  from  a  person  deceased  is  no  consider- 
ation, unless  it  appears  that  there  was  some  person 
(e.  g.  an  executor  or  administrator)  who  could  then 
be  sued  for  it.-  When  the  consideration  is  forbearance 
to  sue  an  executor  as  such,  it  is  not  necessary  to  show 
that  he  had  assets,  for  the  law  will  presume  that.^ 
And  even  if  it  should  be  shown  affirmatively  by  the 
defendant  that  the  executor  had  no  assets,  it  seems 
that  the  consideration  would  be  sufficient,  as  an  exec- 
utor without  assets  may  be  sued,  and  a  judgment  may 
be  recovered  against  him  of  assets  quando  acciderint^ 
It  is  not  necessary  to  show  that  the  person  forbearing 
had  a  right  of  action  in  his  own  name ;  it  is  sufiicient 
if  he  was  the  assignee  of  a  chose  in  action^  and  as  such 
had  a  right  to  sue  in  the  name  of  his  assignor.^  For- 
bearing to  sue  for  the  smallest  valid  claim  is  of  course 
a  sufficient  consideration  for  a  promise  to  pay  the 
largest  sum ;  and  it  is  no  legal  objection  that  the 
party  forbearing  claimed  and  threatened  to  sue  for 
a  larger  sum  than  was  due  to  him.^  The  case  of 
Longridge  v,  Dorville "  is  generally  supposed  to  have 
established  the  doctrine  that  "'  the  giving  up  of  a  suit 
instituted  for  the  purpose  of  trying  a  doubtful  ques- 
tion "  is  a  good  consideration,  though  it  should  turn, 
out  that  the  suit  was  not  well  founded  ;  and  if  so,  the 

1  Loyd  V.  Lee,  1  Str.  94,  Cas.  on  Contr  248. 

2  Jones  V.  Asliburnliam,  4  East,  455,  Cas.  on  Contr.  249. 
8  Banes's  Case,  9  Rep  93  b,  Cas.  on  Contr.  244. 

4  Forth  V.  Stanton,  1  Wms   Saund.  210,  n.  (1). 

5  Morton  v.  Burn,  7  Ad.  &  El.  19,  Cas.  on  Contr.  261. 
«  Smith  V.  Algar,  1  B.  &  Ad.  603,  Cas.  on  Coutr.  260. 
7  5  B.  &  Aid.  117,  Cas.  on  Contr.  285,  288. 


74  CONSIDERATION. 

forbearing  to  begin  or  to  prosecute  such  a  suit  would 
also  be  a  good  consideration.  But  the  case  cited  did 
not  in  fact  involve  any  such  question  ;  for  (1),  the 
*iischarge  of  the  vessel  from  attachment  was  a  suf- 
ficient consideration ;  (2),  the  declaration  did  not 
allege  that  the  suit  involved  any  doubtful  question 
of  law  or  fact ;  and  (3),  the  law  (as  will  be  seen 
presently)  raised  a  presumption  that  the  suit  was 
well  founded.  The  writer  does  not  feel  called  upon 
wholly  to  deny  the  doctrine  in  question,  but  it  clearly 
is  not  established  by  authority,  and  the  application  of 
it  is  attended  with  serious  practical  difficulties.  It 
should,  therefore,  be  received  with  much  caution. 

57.  In  Callisher  v.  Bischolfsheim  ^  it  was  held  that 
forbearance  to  sue  constituted  a  sufficient  consideration, 
if  the  promisee  "  bona  fide  believed  he  had  a  fair  chance 
of  success,"  so  that  he  might  have  sued  without  bad 
faith ;  and  that,  as  there  is  a  legal  presumption  in 
favor  of  honesty  and  good  faith,  the  plaintiff  need 
only  allege  in  his  declaration  that  he  made  the  claim 
and  threatened  to  sue,  and  that  the  defendant,  if  he 
wished  to  show  that  the  forbearance  constituted  no 
consideration,  must  plead  and  prove  that  the  plaintiff 
knew  that  he  had  no  cause  of  action.  In  view  of 
what  has  already  been  said,  it  is  scarcely  necessary  to 
add  that  this  decision  is  alike  repugnant  to  authority 
and  principle.  It  professed,  indeed,  to  follow  Cook  v. 
Wright,^  but  the  decision  in  the  latter  case  rests  upon 
wholly  different  grounds,  and  if  some  of  the  reasons 
given  for  it  countenance  the  decision  in  the  former 
case,  that  only  sliows  what  mischief  may  be  done  by 

1  L.  R.  5  Q.  B.  449,  Cas.  on  Contr.  281. 

2  Best  &  S.  559,  Cas.  on  Contr.  308. 


CONSIDERATION.  75 

giving  wrong  reasons  for  correct  decisions.  In  Cook 
V.  Wright  the  decision  turned  upon  the  fact  that  the 
action  was  upon  promissory  notes.  These  notes  would 
have  had  no  common-law  consideration  to  support 
them,  even  if  the  plaintiff's  claim  had  been  well 
founded ;  for  the  case  would  then  have  been  that  the 
defendant,  being  indebted  to  the  plaintiffs  in  the  sum 
of  SOL,  gave  his  promissory  notes,  payable  at  a  future 
day,  in  payment  thereof.  There  is  no  doubt  that  such 
notes  are  valid,  but  there  is  also  no  doubt  that  an 
ordinary  promise  to  the  same  effect,  and  undei"  the 
same  circumstances,  would  be  without  consideration.^ 
It  follows,  therefore,  that  the  notes  in  question  did 
not  require  a  common-law  consideration  to  make  them 
binding,  and  hence  that  it  was  immaterial  whether 
the  plaintiff's  original  claim  was  well  founded  or  not. 
It  is  true  that  the  giving  of  the  notes  suspended  the 
plaintiff's  remedy  until  the  notes  became  due,  but  the 
notes  were  not,  therefore,  given  in  consideration  of 
forbearance.  It  was  the  operation  of  the  notes  that 
suspended  the  plaintiff's  remedy,  they  being  of  a 
higher  nature  than  the  original  claim,  and  so  op- 
erating as  a  payment  of  it.  This  explains  the 
observations  made  by  Crompton,  J.,  during  the  argu- 
ment (50). 

58.  When  the  consideration  of  a  promise  is  forbear- 
ance to  prosecute  an  existing  suit,  the  plaintiff  need 
not  allege  or  prove  that  the  suit  was  well  founded,  for 
the  law  presumes  that  it  was ;  and  if  it  was  not  well 
founded  in  fact,  the  defendant  has  the  burden  of 
alleging  and  proving  that  it  was  not.'-^     The  soundness 

1  See  Hopkins  v.  Logan,  5  M.  &  W.  241,  Cas.  on  Contr.  421. 

2  Bidwell  V.  Catton,  Hobart,  21G,  Cas.  on  Contr.  245;  Smith  a 
Monteitii,  1;3  M.  &  W.  427,  Cas.  on  Contr.  225,  232,  per  Parke,  B. 


76  CONSIDERATION. 

of  this  distinction  has  been  questioned,  but,  it  seems, 
without  good  reason.  A  suit  is  instituted  in  legal 
contemplation  by  the  court  itself ;  and  a  court  must 
assume  for  all  collateral  purposes  that  its  own  pro- 
ceedings have  been  properly  and  duly  taken,  until  the 
contrary  appears.  Therefore  the  pleadings  were  cor- 
rectly framed  in  Wade  v.  Simeon,^  except  that  the 
plea  ought  to  have  stated  facts  showing  that  the  suit 
in  question  was  not  well  founded,  instead  of  stating  a 
mere  conclusion  of  law.  It  seems  that  Maule's  criti- 
cism upon  the  plea,  viz.  that  it  ought  to  have  shown 
that  the  plaintiff  was  not  entitled  to  recover  upon 
the  issues  actually  joined  in  the  case,  was  not  well 
founded.  If  the  plaintiff  might  have  recovered  be- 
cause the  defendant  had  failed  to  avail  himself  of  a 
defence  which  was  open  to  him,  that  was  matter  for  a 
replication.  The  learned  judge  seems  to  have  been 
misled  by  Smith  v.  Monteith.^ 

59.  When  a  promise  is  made  in  consideration  of 
forbearance,  it  should  always  be  specified  how  long 
the  forbearance  is  to  continue ;  and  if  it  is  to  be  per- 
petual, the  contract  must  be  bilateral,  for  a  unilateral 
contract  cannot  be  made  in  consideration  of  perpetual 
forbearance,  as  such  a  consideration  can  never  be 
fully  performed.  Sometimes  the  terms  of  the  prom- 
ise will  show  how  long  the  forbearance  is  to  continue; 
e.  g.ii  a  promise  be  to  pay  a  debt  of  a  third  person  on  a 
day  named  in  consideration  of  forbearance,  the  mean- 
ing clearly  is  that  the  forbearance  shall  be  until  the 
day  named.3     If  it  is  clear  that  the  forbearance  was 

1  2  C.  B.  548,  Cas.  on  Contr.  265,  270-1. 

2  13  M.  &  W.  427,  Cas.  on  Contr.  225. 

8  Payne  v.  Wilson,  7  B.  &  Cr.  423,  Cas.  on  Contr  257. 


CONSIDERATION.  77 

not  intended  to  be  perpetual,  and  yet  there  are  no 
means  of  fixing  the  time  that  it  shall  continue,  it 
must  continue  for  such  a  length  of  time  as  a  jury 
fihall  think  reasonable  (154). ^  In  Semple  v.  Pink^  it 
was  held  that  the  consideration,  in  such  a  case  as  is 
supposed  above,  was  void  for  uncertainty ;  but  that 
was  upon  the  supposition  that  the  court  must  necessa- 
rily determine  as  a  question  of  law  how  long  the 
forbearance  was  to  continue,  whereas  the  very  fact 
that  the  contract  left  the  time  indefinite  showed  that 
it  was  for  the  jury  to  say,  not,  indeed,  how  long  the 
forbearance  was  to  continue,  but  whether  the  plaintiff 
had  in  fact  forborne  for  a  reasonable  length  of  time, 
taking  into  consideration  all  the  circumstances  of  the 
case.^ 

2.  Consideration  and  Motive. 

60.  In  debt  there  is  practically  no  distinction  be- 
tween consideration  and  motive,  but  in  assump.sit  the 
consideration  need  not  in  fact  constitute  the  whole,  or 
even  any  part,  of  the  motive  for  making  the  promise. 
Thus,  in  the  common  case  where  the  consideration  is 
received  by  a  third  person  and  inures  wholly  to  his 
benefit,  it  would  be  an  abuse  of  terms  to  say  that 
the  consideration  is  the  promisor's  motive  for  making 
the  promise,  his  true  motive  being  a  desire  either  to 
confer  a  benefit  upon  the  person  who  receives  the 
consideration,  or  to  obtain  from  the  latter  some  ad- 
vantage for  himself.  But  even  when  the  considera- 
tion is  received  directly  by  the  promisor,  the  latter 

1  Oldershaw  v.  King,  2  H.  &  N.  399,  517,  Cas.  on  Contr.  274. 

2  1  Exch.  74,  Cas.  on  Contr.  272. 

'  See  Estrigge  and  Owles'  Case,  3  Leon.  200,  Cas.  on  Contr.  950. 


78  CONSIDERATION. 

may  be  induced  to  make  the  promise  by  something 
wholly  different.  In  other  words,  it  may  be  clear 
that  the  promise  would  never  have  been  made  if  the 
consideration  had  been  the  only  inducement  to  make 
it.  Thus  in  Thomas  v.  Thomas  ^  the  consideration 
for  the  defendant's  promise  was  the  plaintiff's  prom- 
ise,2  but  a  desire  to  comply  with  the  will  of  the 
defendant's  testator  was  clearly  the  defendant's  in- 
ducement to  make  the  promise.  So  a  promise  may 
be  made  for  a  nominal  consideration,  ^.  e.  the  con- 
sideration may  be  given  and  received  for  the  mere 
purpose  of  making  the  promise  binding ;  and  in  all 
such  cases  there  must  of  course  be  some  motive  for 
the  promise  besides  the  consideration. 

61.  It  must  not  be  supposed,  however,  that  motive, 
as  distinguished  from  considei'ation,  can  constitute  any 
element  of  a  contract,  or  that  it  is  a  thing  of  which 
the  law  can  strictly  take  any  notice.  On  the  con- 
trary, as  every  consideration  is  in  theory  equal  to  the 
promise  in  value,  so  it  is  in  theory  the  promisor's  sole 
inducement  to  make  the  promise.  As  the  law  cannot 
see  any  inequality  in  value  between  the  consideration 

1  2  Q.  B.  851,  Gas.  on  Contr.  164. 

2  Such,  at  least,  is  the  only  consideration  disclosed  by  the  agree- 
ment sued  on.  It  seems,  however,  that  in  truth  tlie  defendant's 
promise  was  without  consideration.  It  is  true  that  the  plaintiff  made 
a  promise  to  the  defendant,  but  it  was  not  to  take  the  house ;  it  was 
only  to  pay  1/.  annually,  and  keep  the  bouse  in  repair,  in  the  event 
of  her  taking  the  latter.  The  plaintiff  might,  therefore,  have  refused 
to  take  the  house  without  incurring  any  liability  to  the  defendant. 
If  the  plaintiff's  promise  was  the  consideration  of  the  defendant's 
promise,  the  converse  must  also  have  been  true ;  but  the  considera- 
tion of  the  plaintiff's  promise  was  the  conveyance  of  the  house,  and 
not  the  defendant's  promise  to  convey  it.  In  short,  there  was  no 
bilateral  contract  between  the  parties. 


CONSIDERATION.  79 

and  the  promise,  so  it  cannot  see  any  motive  for  th© 
promise  except  the  consideration. 

3.  From  whom  the  Consideration  must  move. 

62.  It  was  decided  in  Button  v.  Poole  ^  (1677)  that 
a  daughter  might  maintain  an  action  on  a  promise 
made  to  her  father  for  her  benefit,  though  it  had  pre- 
viously been  decided,^  as  it  has  been  since  (and  uni 
formly  in  England), ^  that  a  person  for  whose  benefit 
a  promise  was  made,  if  not  related  to  the  promisee, 
could  not  sue  upon  the  promise.  This  latter  proposi- 
tion is  so  plain  upon  its  face  that  it  is  difficult  to 
make  it  plainer  by  argument.  A  binding  promise 
vests  in  the  promisee,  and  in  him  alone,  a  right  to 
compel  performance  of  the  promise,  and  it  is  by  vir- 
tue of  this  right  that  an  action  is  maintained  upon 
the  promise.  In  the  case  of  a  promise  made  to  one 
person  for  the  benefit  of  another,  there  is  no  doubt 
that  the  promisee  can  maintain  an  action,  not  only  in 
his  own  name,  but  for  his  own  benefit.  If,  therefore, 
the  person  for  whose  benefit  the  promise  was  made 
could  also  sue  on  it,  the  consequence  would  be  that 
the  promisor  would  be  liable  to  two  actions.  In  truth, 
a  binding  promise  to  A  to  pay  'SI 00  to  B  confers  no 
right  upon  B  in  law  or  equity.  It  confers  an  authority 
upon  the  promisor  to  pay  the  money  to  B,  but  that 
authority  may  be  revoked  by  A  at  any  moment.  Of 
course   it   follows   that   the   distinction   upon   which 


1  2  Lev.  210,  Gas.  on  Contr.  170. 

2  Bourne  v.  Mason,  1  Ventr.  6,  Cas.  on  Contr.  170. 

8  Crow  V.  Rogers,  1  Str.  592,  Cas.  on  Contr.  172 ;  Price  v.  Easton, 
4  B.  &  Ad.  433,  Cas.  on  Contr.  172. 


80  CONSIDERATION. 

Dutton  V.  Poole  was  decided  is  untenable ;  and  accord- 
inf^ly  that  case  lias  been  overruled.^ 

63.  What  has  been  said  in  the  preceding  para- 
gi"aph  does  not  in  strictness  relate  to  the  subject  of 
"  consideration  ;"  but  it  was  necessary  to  say  it  in  this 
connection,  because  the  case  of  Datton  v.  Poole  has 
given  rise  to  the  notion  that  the  consideration  of  a 
promise  need  not  move  from  the  promisee,  though 
that  case  really  only  decided  that  it  need  not  always 
move  from  the  person  who  sues  on  the  promise.  It  is 
clear  from  the  definition  of  consideration  (45)  that  it 
must  move  from  the  promisee.  Indeed,  it  is  of  the 
very  essence  of  consideration  that  it  be  received  from 
the  promisee.  What  is  received  from  one  person 
cannot  possibly  be  a  consideration  for  a  promise  to 
another  person.  Such  accordingly  is  the  established 
doctrine  in  England  and  in  Massachusetts  ;  ^  and  it  is 
presumed  that  the  contrary  doctrine  would  not  now 
be  held  anywhere  except  where  it  may  be  considered 
as  already  established  by  authority. 

4.  To  WHOM  THE  Consideration  must  move. 

64.  One  of  the  most  striking  differences  between 
debt  and  assumpsit  in  respect  to  consideration  is,  that 
in  debt  the  consideration  must  inure  to  the  benefit  of 
the  debtor,  while  in  assumpsit  it  may  inure  to  the 
benefit  of  the  promisor,  or  of  some  third  person,  or  to 
the  benefit  of  no  one.  It  was  only  by  degrees,  how- 
ever, that  this  difference  between  debt  and  assumpsit 

»  Tweddle  v.  Atkinson,  1  Best  &  S.  393,  Cas.  on  Contr.  174. 
2  Exchange  Bank  v.  Rice,  107  Mass.  37. 


CONSIDERATION.  81 

was  developed.  Thus  in  Smith  and  Smith's  Case  ^ 
it  was  erroneously  held  in  1583  that  the  consideration 
was  insufficient  because  it  was  not  a  benefit  to  the 
promisor,  though  it  was  a  clear  detriment  to  the 
promisee,  i.  e.  the  promisee  did  what  he  was  under  no 
obligation  to  do,  and  he  did  it  in  exchange  for  the 
promise.  It  seems  to  have  been  for  the  same  reason 
that  the  courts  formerly  had  so  much  difficulty  in 
holding  that  a  gratuitous  bailment  was  a  sufficient 
consideration  for  a  promise.^  Even  to  this  day  more 
or  less  misconception  exists  in  consequence  of  apply- 
ing to  assumpsit  ideas  which  belong  exclusively  to 
debt.  Thus,  it  is  frequently  laid  down  as  a  rule,  that 
a  consideration  must  consist  of  some  benefit  to  the 
promisor  or  some  detriment  to  the  promisee,^  as  if 
either  one  of  these  would  do  ;  and  in  applying  this 
rule,  it  is  a  common  practice  to  inquire  first  if  there  is 
a  benefit  to  the  promisor,  as  if  an  affirmative  answer 
to  that  question  would  render  all  further  inquiry  su- 
perfluous, and  as  if  that  were  the  quality  which  every 
consideration  ought  to  possess  to  place  it  entirely 
above  suspicion.  In  Scotson  v.  Pegg,*  Martin,  B., 
said  expressly,  "  that  any  act  done  whereby  the 
contracting  party  receives  a  benefit  is  a  good  con- 
sideration for  a  promise  by  him."     In  truth,  however, 

1  3  Leon.  88,  Cas.  on  Contr.  190.  Compare  Read  i'.  Baxter,  3  Dyer, 
272  h,  note,  Cas.  on  Contr.  435,  n.  (2). 

2  Riches  and  Briggs,  Yelv.  4,  Cas.  on  Contr.  389 ;  Pickas  v.  Guile, 
Yelv.  128,  Cas.  on  Contr.  390;  Wheatley  v.  Low,  Cro.  Jac.  668,  Cas. 
on  Contr.  390. 

3  Per  Patteson,  J.,  Thomas  v.  Thomas,  2  Q.  B.  851,  Cas.  on 
Contr.  164,  168;  per  Lord  EUenborough,  C.  J.,  Jones  v.  Ashburnham, 
4  East,  455,  Cas.  on  Contr.  249,  253-4. 

«  6  H.  &  N.  295,  Cas.  on  Contr.  240,  243. 
6 


82  CONSIDERATION. 

benefit  to  tlie  promisor  is  irrelevant  to  the  question 
whether  a  given  thing  can  be  made  the  consideration 
of  a  promise,  though  it  may  be  very  material  to  the 
question  whether  it  has  been  made  so  in  fact.  There 
may  be  a  clear  benefit  to  the  promisor,  and  yet  no 
consideration,  e.  g.  where  the  benefit  does  not  come 
from  the  promisee.  On  the  other  hand,  detriment  to 
the  promisee  is  a  universal  test  of  the  sufficiency  of 
consideration ;  i.  e.  every  consideration  must  possess 
this  quality,  and,  possessing  this  quality,  it  is  imma- 
terial whether  it  is  a  benefit  to  the  promisor  or 
not. 

65.  The  reason  for  this  radical  difference  between 
assumpsit  and  debt  is  plain.  In  debt  the  considera- 
tion must  be  received  by  the  debtor,  because  that  is 
what  creates  the  debt ;  and  that  was  a  principal  reason 
why  debt  was  so  limited  in  its  scope,  and  why  a  new 
remedy,  not  subject  to  such  a  limitation,  was  so  loudly 
called  for.  Such  a  remedy  was  found  in  the  action  of 
assumpsit,  because  it  was  founded  upon  the  theoi-y 
that  the  defendant's  obligation  was  created  by  his 
promise,  and  not  by  a  consideration  received. 

5.  Mutual  Consent  as  an  Element  of   Consid- 
eration. 

66.  The  mutual  consent  necessary  to  every  contract 
must  extend  to  the  consideration  as  well  as  to  the 
promise.  As  the  consideration  always  has  to  be  per- 
formed by  the  promisee  or  on  his  behalf,  the  act  of 
performance  commonly  carries  with  it  the  consent  of 
the  promisee,  ^.  e.  the  circumstances  under  which  the 
act  is  performed  will  commonly  show  clearly  that  it 


CONSIDERATION. 

is  performed  as  the  consideration  for  the  promise, 
such  is  the  fact.  Frequently  also  the  performance 
of  the  consideration  requires  the  co-operation  of  the 
promisor  ;  and  in  that  case  the  same  evidence  that 
proves  the  consent  of  the  promisee  will  generally 
prove  that  of  the  promisor.  In  many  cases,  however, 
the  act  alleged  to  be  the  consideration  may  be  per- 
formed without  the  participation  or  knowledge  of  the 
promisor,  even  when  it  inures  to  his  benefit;  and 
when  it  does  not  inure  to  bis  benefit,  of  course  he  is 
naturally  a  mere  stranger  to  it.  In  all  such  cases, 
therefore,  the  consent  of  the  promisor  must  be  jaroved 
as  an  independent  fact ;  but  it  may  commonly  be 
proved  by  the  same  evidence  by  which  his  consent  to 
the  promise  is  proved.  Thus  the  original  offer  must, 
to  be  complete,  specify  the  consideration  as  well  as 
the  promise,  either  expressly  or  by  implication.  If, 
therefore,  the  original  offer  comes  from  the  promisor, 
he,  in  legal  contemplation,  requests  the  performance 
of  the  consideration  ;  if  the  offer  comes  from  the 
promisee,  the  promisor  accepts  the  consideration  when 
he  makes  the  promise.  Any  act  of  the  promisee,  ' 
however,  which  may  constitute  a  consideration,  may! 
also  constitute  a  condition  only;  and  hence,  whether' 
it  constitutes  one  or  the  other,  in  a  particular  case, 
depends  upon  the  intention  of  the  parties.  Of  the 
intention  of  the  promisee  in  this  respect  there  will 
seldom  be  much  doubt ;  but  when  the  original  offer  is 
made  b}?^  the  promisor,  it  is  frequently  impossible  to 
decide  from  the  terms  of  the  offer  whether  an  act 
required  to  be  performed  by  the  promisee  was  in- 
tended to  be  the  consideration  of  the  promise  or  a 
mere  condition.     In  such  cases  the  nature  of  the  act 


84  CONSIDERATION. 

and  all  the  circumstances  of  the  case  must  be  care- 
fully considered.  For  example,  if  the  performance 
of  the  act  inured  to  the  benefit  of  the  promisor,  that 
Avill  be  a  circumstance  to  prove  that  the  promise  was 
made  in  order  to  procure  its  performance,  but  the 
strength  of  the  proof  will  depend  greatly  upon  the 
expected  value  of  the  performance  to  the  promisor. 
So  if  the  performance  of  the  act  inured  to  the  benefit 
of  some  third  person,  but  it  appears  that  the  promisee 
would  not  perform  it  without  the  promise,  the  latter 
fact  will  be  wellnigh  conclusive  proof  that  the  per- 
formance was  the  consideration  of  the  promise.  On 
the  other  hand,  if  the  act  performed  by  the  promisee 
be  one  in  which  the  promisor  had  no  interest  prior  to 
making  the  promise,  and  if  he  apparently  required  its 
performance,  not  because  he  desired  it,  but  because 
he  deemed  it  doubtful  whether  the  promisee  could  or 
would  perform  it,  the  natural  inference  is  that  it  was 
not  intended  to  be  a  consideration  for  the  promise, 
but  a  condition.  Therefore  the  showing  of  the  deed 
in    Sturlyn   v.  Albany,^  the  proving  of   the  debt  in 

Traver  v. r,^  and  the  making  of  the  oath  in  Brooks 

v.  Ball,^  appear  to  have  been  (what  the  respective 
reports  literally  state  them  to  have  been,  namely) 
conditions.  In  Anon.*  it  seems  clear  that  the  pay- 
ment of  Is.  was  the  consideration,  and  the  making  of 
proof  a  condition.  It  may  be  added  that  the  decision 
in  this  case,  and  in  Traver  v.  ,  cannot  be  sup- 
ported in  any  view ;  for  whether  the  making  of  proof 

1  Cro.  Eliz.  67,  Cas.  on  Contr.  101. 

2  1  Sid.  57,  Cas.  on  Contr.  1U4. 

8  18  Johns.  337,  Cas.  on  Contr.  200. 
*  i'alm.  IGO,  Cas.  on  Contr.  I'Jl,  u.  (1). 


CONSIDERATION.  85 

was  a  consideration  or  a  condition,  there  was  no  right 
of  action  until  proof  was  made. 

67.  The  case  of  King  v.  Sears  ^  furnishes  a  good 
illustration  of  the  distinction  between  consideration 
and  condition.  The  giving  up  of  the  bill  of  exchange 
which  the  plaintiff  held  as  collateral  security  might 
of  course  have  been  made  the  consideration  for  the 
defendant's  promise,  but  according  to  the  declaration 
it  was  in  fact  made  a  condition,  audi  to  have  made  it 
the  consideration  would  have  been  injurious  to  the 
plaintiff ;  for  then  he  must  either  have  given  up  the 
bill  before  he  received  his  money,  or  have  taken  his 
chance  of  the  defendant's  paying  on  receiving  the  bill 
when  the  time  came. 

68.  Sometimes  an  act  is  done  by  a  promisee  which 
he  has  obvious  reasons  for  doing  for  his  own  benefit, 
and  in  which  the  promisor  has  no  obvious  interest. 
Such  an  act  is  presumptively  neither  a  consideration 
nor  a  condition,  though  the  promisor  may  make  it 
either.  Of  this  nature  seems  to  have  been  the  act  of 
destroying  the  old  securities  in  Barnes  v.  Hedley,^  the 
plaintiff  having  done  it  voluntarily  and  for  his  own 
protection.  This  seems  also  to  be  the  real  diflficulty 
in  the  way  of  holding  a  gratuitous  bailment  to  be  a 
consideration  for  a  promise  by  the  bailee.  In  the 
case  of  a  bailee  for  hire,  there  is  no  doubt  that  the 
hire,  paid  or  promised  to  be  paid,  is  the  sole  consider- 
ation for  the  bailee's  promise ;  yet  the  delivery  of  the 
property  takes  place  in  the  latter  case  as  well  as  in 
that  of  a  gratuitous  bailment.  If  a  gratuitous  bailee 
wishes  to  bind  himself  legally,  he  can  do  so  by  making 

1  2  C.  M.  &  R.  48,  Gas.  on  Contr.  403. 
-  2  Taunt.  184,  Cas.  on  Contr.  327. 


86  CONSIDERATION. 

the  delivery  of  the  property  to  him  the  consideration 
for  his  promise  ;  but,  in  the  absence  of  evidence  to 
that  effect,  there  is  but  one  reason  for  holding  the 
bailment  to  be  a  consideration,  namely,  that  there  is 
no  other  way  of  sustaining  the  promise.  This  is  a 
question,  however,  which  will  commonly  have  to  be 
submitted  to  a  jury,  and  a  jury  can  seldom  be  induced 
to  find  in  favor  of  a  defendant  upon  the  mere  ground 
that  his  promise  was  without  consideration.  In  all 
the  cases  given  in  the  writer's  collection  of  Cases  on 
Contracts  ^  the  question  arose  upon  the  declaration, 
and  the  declaration  stated  expressly  that  the  promise 
was  made  in  consideration  of  the  bailment.  In  Hart 
V.  Miles  it  may  be  observed  that  the  bailment  of  the 
two  bills  of  exchange  was  the  only  consideration  to 
support  the  first  count.  First,  that  was  the  consider- 
ation declared  upon.  Secondly,  the  receipt  of  the 
proceeds  of  the  bills  by  the  defendant  would  only 
support  a  count  for  money  had  and  received,  and  a 
promise  implied  by  law.  Thirdly,  the  plaintiff's  loss 
of  the  opportunity  to  get  the  bills  discounted  elsewhere 
was  only  a  consequence  of  the  bailment,  and  not  an 
additional  consideration. 

In  Shadwell  v.  ShadwelPthe  plaintiff's  marrying 
may  have  been  a  condition  of  his  uncle's  promise  (the 
annuity  being  intended  as  a  provision  for  the  support 
of  a  family),  but  there  is  no  ground  for  saying  that 
it  was  the  consideration  for  it.     If  it  was,  it  would 

1  Riches  and  Briggs,  Yclv.  4,  Gas.  on  Contr.  389  ;  Pickas  v.  Guile, 
Yelv.  128,  Cas.  on  Contr.  390  ;  Wlieatley  v.  Low,  Cro.  Jac.  668, 
Cas.  on  Contr.  390;  Hart  v.  Miles,  4  C.  B.  N.  S.  371,  Cas.  on  Contr. 
891. 

2  30  L.  J.  C.  P.  145,  Cas.  on  Contr.  233. 


CONSIDERATION.  87 

tollow  that  the  uncle's  letter  was  a  mere  offer,  which 
would  not  become  a  promise  until  the  plaintiff  mar- 
ried, and  might  of  course  be  revoked  in  the  mean  time  ; 
but  it  is  impossible  to  put  such  a  construction  upon 
the  letter.  If  the  uncle  intended  to  become  legally- 
bound  at  all,  he  intended  to  be  bound  from  the  mo- 
ment the  letter  was  written.  Nor  was  there  anything 
in  the  terms  of  the  letter  or  in  the  circumstances  of 
the  case  to  warrant  the  court  in  holding  that  the 
promise  was  given  to  induce  the  plaintiff  to  marry; 
in  other  words,  that  the  uncle  requested  the  plaintiff 
to  marry.  It  may  be  that  the  plaintiff  changed  his 
position  on  the  faith  of  the  promise,  but  that  w^ould 
not  constitute  a  consideration  for  the  promise  (79). 
Byles,  J.,  seems  to  have  taken  the  true  view. 

6.*  Relation  in  time  of  the  Consideration  to  the 
Promise. 

69.  It  has  frequently  been  supposed  that  the  per- 
formance of  the  consideration  might  be  either  past  or 
future  in  respect  to  the  time  of  making  the  promise  ; 
but  that  is  a  mistake.  When  the  consideration  cre- 
ates a  debt,  there  is  no  doubt  that  the  debt  arises  the 
moment  that  the  consideration  is  given  and  received  ; 
and  the  same  rule  holds  when  the  consideration  is 
only  sufficient  to  support  a  promise,  ^.  e.  the  promise 
must  be  made  in  legal  contemplation  the  moment  that 
the  performance  of  the  consideration  is  completed. 
If  this  were  not  so,  it  would  not  be  true  according  to 
the  definition  (45),  that  the  consideration  is  given  in 
exchange  for  the  promise. 

70.  A  distinction  is  to  be  made,  however,  between 
a  promise  made  befoi'e  the  consideration  is  performed 


88  CONSIDERATION, 

and  one  made  aftei'wards.  A  iDromise  made  for  a 
consideration  to  be  thereafter  performed,  though  it 
will  be  invalid  as  a  promise,  will  take  effect  as  an 
offer,  and  will  therefore  become  a  binding  promise  as 
soon  as  the  consideration  is  performed,  unless  it  has 
been  revoked  or  has  otherwise  ceased  to  exist  before 
that  time ;  but  a  promise  made  for  a  consideration 
already  performed  is  simply  a  promise  without  con- 
sideration, and  hence  it  can  never  form  an  element  of 
a  binding  contract.  Therefore  a  declaration  upon  a 
promise  as  made  for  a  consideration  to  be  performed, 
though  faulty  as  not  stating  facts  according  to  their 
legal  effect,  yet  will  state  a  good  cause  of  action  if  it 
avers  performance  of  the  consideration  ;  but  a  declar- 
ation on  a  promise  as  made  for  a  consideration  already 
performed  is  fatally  defective,  and  no  averment  can 
make  it  good.  For  this  reason  the  declaration  seems 
to  have  been  bad  in  each  of  the  following  cases : 
Hawes  v.  Smith  ;  ^  Williamson  v.  Clements  ;  ^  Wilkin- 
son V.  Oliveira  ;  ^  Riches  and  Briggs  ;  ^  Neale  v.  Rat- 
cliff.^  When  a  promise  is  declared  upon  as  made  for 
a  future  consideration,  care  must  be  taken  not  to 
mistake  the  consideration  for  a  condition,  as  seems 
to  have  been  done  in  Collins  v.  Gibbs.^  It  was  there 
assumed  that  it  would  have  been  sufficient  for  the 
plaintiff  to  aver  a  tender  of  the  consideration  ;  and  if 
it  had  been  a  condition,  that  would  have  been  true. 
But  an  averment  of  a  tender  and  refusal  of  the  con- 

1  2  Lev.  122,  Cas.  on  Contr.  195. 

2  1  Taunt.  523,  Cas.  on  Contr.  197. 

8  1  Bing.  N.  C.  490,  Cas.  on  Contr.  208. 
*  Yelv.  4,  Cas.  on.  Contr.  389. 

5  15  Q.  B.  916,  Cas.  on  Contr.  510. 

6  2  Burr.  899,  Cas.  on  Contr.  462. 


CONSIDERATION.  89 

fiideration  would  have  shown  that  the  defendant's 
offer  had  been  revoked,  or  at  all  events  it  would 
not  have  shown  that  it  had  ripened  into  a  binding 
promise. 

7.   Moral  Consideration. 

71.  Lord  Mansfield  appears  to  have  entertained  the 
opinion  that  a  mere  promise  to  do  what  the  promisor 
was  already  under  a  moral  obligation  to  do  was  bind- 
ing. Whether  his  theory  was  that  the  antecedent 
moral  obligation  furnished  a  sufficient  consideration 
for  the  promise,  or  that  such  a  promise  was  binding 
without  a  consideration,  may  not  be  clear ;  but  the 
former  theory  is  the  one  that  has  commonly  been 
attributed  to  him,  and  hence  the  moral  obligation 
which  was  supposed  to  make  the  promise  binding  has 
acquired  the  name  of  moral  consideration.  The  other 
theory,  however,  would  have  been  less  untenable,  and 
less  mischievous  in  its  tendency.  It  would  indeed 
have  been  liable  to  the  serious  objection  of  involving 
judicial  legislation,  but  the  theory  of  moral  considera- 
tion was  liable  to  the  much  greater  objection,  at  least 
in  a  scientific  point  of  view,  that  it  could  only  succeed 
at  the  expense  of  involving  a  fundamental  legal  doc- 
trine in  infinite  confusion.  Lord  Mansfield  never 
attempted  to  enumerate  or  define  the  cases  in  which 
an  antecedent  moral  obligation  would  render  a  promise 
binding.  He  frequently  put  the  cases  of  a  promise  to 
pay  a  debt  barred  by  the  Statute  of  Limitations,  of  a 
promise  by  an  adult  to  pay  a  debt  contracted  during 
infancy,  and  by  a  bankrupt  to  pay  a  debt  from  which 
he  had  been  discharged ;  but  he  appears"  to  have  put 
these  cases    merely   by  way  of    illustration,   and   he 


90  CONSIDERATION. 

decided  on  two  occasions  that  tlie  same  principle 
applied  to  a  promise  by  an  executor,  having  sufficient 
assets  for  the  purpose,  to  pay  a  pecuniary  legacy. ^ 
It  was  also  decided  several  years  after  Lord  Manstield's 
death,  but  while  his  view  upon  this  subject  was  still  in 
vogue,  that  a  promise  to  pay  a  debt  void  for  usury,^ 
and  a  promise  to  pay  a  bond  void  on  the  ground  of 
coverture,'^  were  supported  by  an  antecedent  moral 
obligation,  and  were  therefore  binding.  The  former 
of  these  cases  was  decided  in  1809,  the  latter  in  1813. 
Meanwhile,  in  1804,  Messrs.  Bosanquet  and  Puller, 
in  a  note  to  Wennall  v.  Adney,^  controverted  the 
idea,  which,  they  said,  had  prevailed  of  late  years, 
"  that  an  express  promise,  founded  simply  on  an 
antecedent  moral  obligation,  is  sufficient  to  support 
an  assumpsit."  In  1831  Lord  Tenterden  observed,^ 
"  that  the  doctrine  that  a  moral  obhgation  is  a  suf- 
ficient consideration  for  a  subsequent  promise  is  one 
which  should  be  received  with  some  limitation."  In 
1840,  in  the  case  of  Eastwood  v.  Kenyon,^  the  note  to 
Wennall  v.  Adney  was  cited  for  the  first  time  in  an 
English  court,  and  the  conclusion  there  arrived  at  was 
declared  to  be  correct ;  and  since  that  date  the  notion 
oi  moral  consideration  has  received  no  countenance 
from  any  quarter.  Of  the  cases  which  had  been  sup- 
posed to  rest  upon  that  doctrine,  such  as  cannot  be 
sustained  on  other  grounds  must  be  considered  as 
overruled. 

1  Atkins   V.   Hill,   Cowp.   284,   Cas.   on   Contr.   316;   Hawkes  » 
SftunJers,  Cowp.  289,  Cas.  on  Contr.  323. 

2  Barnes  v.  Hedlejs  2  Taunt.  184,  Cas.  on  Contr.  327. 
8  Lee  V.  Muggeridge,  5  Taunt.  3(5,  Cas.  on  Contr.  333. 
*  3  B.  &  P.  249,  Cas.  on  Contr.  347,  n.  (1). 

6  Littlefield  v.  Sliee,  2  B.  &  Ad.  811,  Cas.  on  Contr.  341,  342. 
«  11  Ad.  &  El.  438,  Cas.  on  Contr.  343. 


CONSIDERATION.  91 

72.  In  the  cases  of  infancy,  bankruptcy,  and  the 
Statute  of  Limitations,  the  subsequent  promise,  while 
necessary  to  enable  the  plaintiff  to  recover,  does  not 
constitute  his  ground  of  action.  The  contract  of  an 
infant,  not  being  void,  but  merely  voidable,  can  be 
ratified  by  the  infant  after  he  comes  of  age,  and  a  new- 
promise  operates  as  a  ratification.  The  action,  how- 
ever, must  be  brought  on  the  original  conti'act,  and 
the  new  promise  must  be  used  simply  to  repel  the 
defence  of  infancy  in  the  event  of  its  being  pleaded. ^ 
It  is  upon  this  ground  that  Edmonds'  Case '^  must  rest. 
In  the  case  of  bankruptcy,  the  certificate  of  discharge 
does  not  extinguish  the  debt,  but  merely  protects  the 
defendant  from  an  action  by  means  of  a  positive  stat- 
utory bar.  This  defence,  however,  being  given  merely 
for  the  bankrupt's  benefit,  may  be  waived  by  him 
(^quilibet  potest  renunciare  juri  pro  se  introducto'),  and 
a  new  promise  will  operate  as  a  waiver.  In  this  case, 
therefore,  as  in  that  of  infancy,  the  action  must  be 
founded  upon  the  original  debt ;  and  if  the  defendant 
pleads  his  discharge,  the  plaintiff  must  reply  the  new 
promise.^  Trueman  v.  Fenton  ^  was  not  a  case  of  the 
above  description ;  it  was  a  compromise  of  a  debt 
befoi'e  the  debtor  had  obtained  his  discharge  ;  the  old 
notes  were  delivered  up  to  be  cancelled,  and  a  new 
note  given  for  a  part  of  the  sum  due ;  the  extinguish- 
ment of  the  old  debt  was  abundant  consideration  for 

1  Williams  v.  Moor,  11  M.  &  W.  256. 

2  3  Leon.  164,  Gas.  on  Contr.  314. 

8  Sliippey  V.  Henderson,  14  John.  178,  Cas.  on  Contr.  368;  Dusen- 
bury  V.  Hoyt,  63  N.  Y.  521,  Cas.  on  Contr.  387 ;  Way  v.  Sperry,  6 
Cush.  238,  Cas.  on  Contr.  384.  For  form  of  replication  sec  3  CIl 
Pi.  (7th  ed.)  428. 

*  Cowp.  544,  Cas.  on  Contr.  318. 


92  CONSIDERATION. 

the  new  note,  if  a  consideration  were  necessary ;  but 
if  there  bad  been  nothing  more  tlian  the  giving  of  the 
new  note,  it  would  have  been  only  the  common  trans- 
action of  giving  a  note  in  payment  of  an  existing 
debt,  and  the  note  would  have  been  valid. 

73.  The  case  of  a  promise  to  pay  a  debt  barred  by 
the  Statute  of  Limitations  stands  upon  a  peculiar  and 
anomalous  ground.  On  the  one  hand,  the  action  must 
be  brought  upon  the  old  debt,  and  not  upon  the  new 
promise. 1  On  the  other  hand,  if  the  defendant  pleads 
the  Statute  of  Limitations,  Jthe  plaintiff  cannot  reply 
a  new  promise.  To  have  sustained  such  a  replication 
would  have  been  directly  in  the  teeth  of  the  statute, 
which  declared  that  no  action  should  be  brought  after 
the  expiration  of  the  prescribed  period,  and  made  no 
provision  for  a  new  promise.  The  consequence  was 
that  a  plea  of  the  statute  could  not  be  repelled  in  any 
way  by  means  of  a  new  promise,  except  when  the 
cause  of  action  was  a  simple-contract  debt,  and  the 
plaintiff  declared  on  a  promise  implied  by  mw  to  pay 
the  debt.^  In  cases  which  came  within  the  above 
exception  the  plaintiff  tendered  issue  on  the  plea  ;  and 
at  the  trial,  upon  the  defendant's  proving  the  debt 
to  be  more  than  six  years  old,  the  plaintiff  proved  a 
new  promise  within  six  years  ;  and  that  was  held  to 
remove  the  bar  of  the  statute  sufficiently  for  the  law 
again  to  raise  a  promise  to  pay  the  debt ;  and  as  this 
new  implied  promise  supported  the  declaration  equally 
well  with  the  old  one  upon  which  the  plaintiff  was 
supposed  to  have  declared,  the  issue  had  to  be  found 

1  Usley  V.  Jewett,  3  Met.  439,  Cas.  on  Contr.  380. 

2  Boydell  v.  Drummond,  2  Cainpb.  157,  162;  Short  v.  McCarthy, 
3  B.  &  Aid.  026 ;  Whitehead  o.  Howard,  2  Br.  &  B.  372. 


CONSIDERATION.  93 

ill  the  plaintiff's  favor.  The  true  explanation  of  this 
highly  artificial  doctrine  seems  to  be  that  it  was  an 
ingenious  device  for  evading  the  statute,  adopted  and 
sanctioned  at  a  time  when  the  courts  regarded  it  with 
much  disfavor.  However  this  may  be,  it  is  sufficient 
for  the  present  purpose  to  show  that  an  action  will 
not  lie  upon  the  new  promise.  fr 

74.  There  is  another  class  of  cases  in  which  an  ex- 
press promise  may  render  a  person  liable,  and  yet  no 
action  will  lie  on  the  promise  itself,  namely,  where 
services  have  been  rendered  or  money  has  been  paid 
for  a  person  without  his  authority,  and  he  afterwards 
promises  to  pay  for  the  services  or  to  repay  the 
money.  In  such  cases  the  subsequent  promise  sup- 
plies the  want  of  a  previous  authority,  and  thus  makes 
the  promisor  a  debtor  by  relation  from  the  time  when 
the  services  were  rendered  or  the  money  was  paid. 
The  promise,  therefore,  is  merely  one  of  the  elements 
out  of  which  the  debt  is  created;  and  though  an  action 
of  assumpsit  will  lie,  it  must  be  founded  on  a  promise 
implied  by  law  to  pay  the  debt.  The  declaration  in 
such  an  action  will  properly  take  no  notice  of  the 
actual  promise,  and  the  latter  will  be  material  only  as 
evidence  to  prove  the  defendant's  request,  which  the 
declaration  must  allege.  It  is  upon  this  ground  that 
the  decision  must  rest  in  Watson  v.  Turner,^  and  in 
King  V.  Mill.2  It  seems  that  the  .plaintiff  in  East- 
wood v.  Kenyon  ^  would  have  been  entitled  to  recover 
upon  this  principle  if  he  had  joined  the  wife  as  a 
defendant.     The  promise  of  the  wife  after  she  came 

1  Bull.  N.  P.  129,  Cas.  on  Contr.  315. 

2  1  B.  &  Aid.  104,  Cas.  on  Contr.  338. 
8  11  Ad.  &  El.  438.  Cas.  on  Contr.  343. 


94  CONSIDERATION. 

of  age  would,  it  seems,  have  performed  the  double 
office  of  supplying  the  want  of  a  previous  authority, 
and  of  repelling  the  defence  of  infancy.  In  Mills  v. 
Wyman  ^  the  subsequent  promise  was  not  available, 
because  the  services  were  not  rendered  to  the  defend- 
ant, but  to  his  son.  The  services  were  a  consideration 
which  inured  to  the  benefit  of  the  son,  and  created  a 
debt  against  him  from  the  time  when  they  were  ren- 
dered ;  by  no  possibility,  therefore,  could  they  ever 
create  a  debt  against  the  father.  If  the  son  had 
been  a  minor  and  a  member  of  his  father's  family, 
and  if  the  services  had  been  rendered  on  the  credit 
of  the  latter,  the  decision  would  have  been  dif- 
ferent. 

75.  It  is  not  entirely  clear  upon  what  ground  the 
case  of  Trewinian  v.  Howell ^  was  decided;  but  it  is 
impossible  to  support  it  upon  any  ground.  First,  the 
indebtedness  of  the  defendant  as  executor  was  no 
consideration  for  an  actual  promise,  and  the  law  would 
only  imply  from  it  a  promise  coextensive  with  the 
debt,  namely,  to  pay  de  bonis  testatoris.^  Secondly, 
the  defendant  was  under  no  antecedent  moral  obliga- 
tion; the  only  obligation  that  he  was  under  was  a 
legal  one,  namely,  to  pay  de  bonis  testatoris.  Thirdly, 
having  assets  might  be  a  condition  of  the  defendant's 
promise,  but  it  could  not  possibly  be  a  consideration 
for  it,  as  it  was  not  a  thing  given  or  done  by  the 
promisee,  nor  did  it  proceed  from  the  promisee.  In- 
deed, according  to  the  report,  it  was  only  stated  as  a 
condition  in  the  declaration.     The  cases  of  Atkins  y. 

1  3  Pick.  207,  Cas.  on  Contr.  370. 

2  Cro.  Eliz.  01,  Cas.  on  Contr.  315. 

s  Kann  u.  IIugliL-s,  7  T.  K.  3o0,  n.  {a),  Cas.  on  Contr.  187. 


CONSIDERATION.  95 

Hill,^  and  Hawkes  v.  Saunders,^  went  a  step  further 
in  violation  of  principle  than  Trewinian  v.  Howell. 
In  the  latter,  the  defendant  was  liable  as  executor  on 
an  implied  promise ;  in  the  two  former  he  was  not 
liable  at  law  at  all.  No  consideration  was  alleged  for 
an  express  promise,  and  the  reason  alleged  for  an 
implied  promise,  namely,  that  the  defendant  had 
become  liable  by  virtue  of  assets  (z.  e.  liable  at  law), 
was  untrue.^  His  position  was  simply  that  of  holding 
a  fund  in  which  the  plaintiff  had  an  interest ;  which 
is  a  ground  for  a  suit  in  equity  to  compel  the  applica- 
tion of  the  fund,  but  never  imposes  any  liability  at 
law  except  in  those  cases  in  which  an  action  of 
account  will  theoretically  lie.  In  other  words,  with 
the  exception  just  stated,  there  is  no  remedy  at  law 
to  recover  a  fund,  or  any  interest  in  it.  To  hold  an 
executor  with  sufficient  assets  personally  liable  for 
pecuniary  legacies  would  be  attended  with  two  singu- 
lar results :  first,  that  it  would  be  no  defence  for  the 
executor  that  the  assets  had  perished  or  been  lost 
without  his  fault;  secondly,  that  the  legatee  would  be 
deprived  of  all  remedy  in  equity  against  the  assets,  for 
if  the  receipt  of  assets  renders  the  executor  personally 
liable,  of  course  it  must  be  because  the  assets  become 
his.  In  other  words,  under  the  guise  of  compelling 
payment  of  a  legacy  in  a  court  of  law,  the  court  would 
be  treating  the  legatee  as  if  he  had  released  his  legacy 
to  the  executor,  and  the  executor  as  if,  in  considera- 
tion of  such  release,  he  had  promised  to  pay  the  lega- 
tee a  sum  equal   in  amount  to  the  legacy  out  of  his 

1  Cowp.  284,  Cas.  on  Contr.  .316. 

2  Cowp.  '289,  Cas.  on  Contr.  323. 
8  Decks  V.  ytrutt,  5  T.  R.  690. 


96  CONSIDERATION. 

own  estate.  Of  course  there  are  cases  in  which  such 
an  arrangement  would  be  agreeable  to  both  parties, 
but  there  are  also  cases  in  which  it  would  be  the  ruin 
of  one  of  them. 

76.  Lee  v.  Muggeridge  ^  was  properly  overruled  by 
Eastwood  V.  Kenyon  ;2  and  Barnes  v.  Hedley^  ought 
to  have  shared  the  same  fate.  Lord  Denman  says, 
indeed,^  that  the  latter  case  is  fully  consistent  with 
the  doctrine  laid  down  in  the  note  to  Wennall  v. 
Adney ;  but  if  so,  it  must  follow  that  that  note  is 
open  to  criticism.  Barnes  v.  Hedley  seems,  if  possi- 
ble, open  to  greater  objection  than  Lee  v.  Muggeridge ; 
for  in  the  latter  case  there  was  a  clear  moral  obliga- 
tion, which  is  more  than  a  court  of  law  could  well  say 
of  the  former  in  the  face  of  the  statute  of  usury.  The 
cancellation  of  the  old  securities  might,  it  seems,  have 
been  made  a  sufficient  consideration,  but  it  cannot  be 
inferred  from  the  report  that  it  was  a  consideration 
in  fact ;  for  the  cancellation  seems  to  have  been 
made  after  the  promise  was  given,  and  rather  for 
tlie  benefit  and  protection  of  the  plaintiff  than  as  a 
consideration  for  the  defendant's  promise.  Undoubt- 
edly Barnes  v.  Hedley  derives  some  support  from 
Flight  V.  Reed.^  In  the  latter  case,  however,  the 
action  was  upon  bills  of  exchange  which  had  been 
accepted  by  the  defendant.  The  decision,  therefore, 
rests  upon  the  same  principle  as  in  Cook  v.  Wright.**  j/ 

1  5  Taunt.  36,  Gas.  on  Contr.  333. 

2  11  Ad.  &  El.  438,  Cas.  on  Contr.  843. 

3  2  Taunt.  184,  Cas.  on  Contr.  327. 

*  11  Ad.  &  El.  448,  Cas.  on  Contr.  360. 
'  1  H.  &  C.  703,  Cas.  on  Contr.  359. 
c  1  Best  &  S.  559,  Cas.  on  Contr.  308. 


CONSIDERATION.  97 

The  bills  were  a  payment  of  the  usurious  loan.  If 
payment  had  been  made  in  money,  no  action  would 
have  lain  to  recover  the  money  back  ;  and  for  the 
same  reason  there  was  no  defence  to  the  bills  (50, 57). 
77.  Jennings  v.  Brown  ^  was  an  amicable  suit,  and 
it  is  not  surprising  that  the  court  should  have  been 
astute  to  find  a  consideration  ;  but  it  is  impossible  to 
support  the  decision  upon  principle.  It  was  intimated 
by  the  court  that  the  support  of  the  child  by  the 
plaintiff  was  a  sufficient  consideration  for  the  promise, 
and  doubtless  a  binding  promise  by  the  plaintiff  to 
take  care  of  the  child  would  have  been  a  sufficient 
consideration ;  but  the  plaintiff  did  not  declare  upon 
mutual  promises,  nor  did  it  appear  from  the  evidence 
that  the  plaintiff  had  made  any  promise  whatever. 
Regarding  the  promise  as  unilateral  (and  it  was  de- 
clared upon  as  such),  and  assuming  that  the  supj)ort 
of  the  child  was  the  consideration  for  it,  the  con- 
sideration had  not  been  fully  performed  when  the 
promisor  died.^  In  truth,  however,  there  was  no  con- 
sideration for  the  promise ;  the  plaintiff  neither  did 
anything,  nor  was  to  do  anything,  in  exchange  for  it ; 
if  it  was  binding  at  all,  it  was  binding  from  the 
moment  when  it  was  made,  and  yet  it  could  not  be  if 
the  support  of  the  child  was  the  consideration  for  it. 

1  9  M.  &  W.  496,  Cas.  on  Contr.  353. 

^  If,  however,  the  support  of  the  child  had  been  in  truth  the  con- 
sideration of  tlie  defendant's  promise,  it  seems  that  the  consideration 
and  the  promise  sliould  have  been  taken  distributivelj',  the  support  of 
the  child  during  each  quarter  being  the  consideration  for  the  payment 
at  the  beginning  of  the  next  quarter.  In  other  words,  there  would 
have  been  a  separate  contract  as  to  each  quarter's  payment.  Cora- 
pare  Jones  V.  Ashburnham,  4  East,  455,  Cas.  on  Contr,  249 ;  Payna 
w.  Wilson,  7  B.  &  Cr.  423,  Cas.  on  Contr.  257. 

7 


98  CONSIDE"RATION. 

Moreover,  it  seems  clear  from  the  evidence  that  the 
testator  had  no  intention  of  binding  himself  legally. 

78.  Davis  v.  Dodd  ^  did  not  involve  any  question  of 
consideration.  It  was  an  action  upon  a  bill  of  ex- 
change, and  the  plaintiff  failed  because  he  was  unable 
to  produce  the  bill  at  the  trial,  the  court  holding  that 
the  defendant's  promise  to  pay  the  bill,  notwithstand- 
ing its  loss,  did  not  dispense  with  its  production.  If, 
however,  the  plaintiff  had  declared  upon  this  latter 
promise,  he  would  clearly  have  failed.  Littlefield  v. 
Shee,^  and  Meyer  v.  Haworth,^  did  not  strictly  involve 
any  question  of  moral  obligation.  The  plaintiff  de- 
clared in  both  cases  upon  an  indebtedness  for  goods 
sold  and  delivered,  and  as  the  defendants  were  married 
women  at  the  time  of  the  sale,  the  indebtedness  was 
not  proved.  In  Binnington  v.  Wallis,*  Beaumont 
V.  Reeve,^  Valentine  v..  Foster,^  and  Dearborn  v. 
Bowman,^  the  promises  sued  on  had  nothing  more 
than  an  antecedent  moral  obligation  to  support 
them,  and  hence  they  were  properly  held  not  to  be 
binding. 

79.  There  is  a  class  of  cases  in  which  promises  with- 
out consideration  have  been  enforced,  not  because 
there  was  an  antecedent  moral  obligation  to  do  the 
thing  promised,  but  because  the  promise  was  made 
with  the  expectation  that  the  promisee  would  act  or 
refrain  from  acting  on  the  faith  of  it,  and  with  the 

1  4  Taunt.  602,  Cas.  on  Contr.  332. 

2  2  B.  &  Ad.  811,  Cas.  on  Contr.  341. 
8  8  Ad.  &  El.  467,  Cas.  on  Contr.  342. 
*  4  B.  &  Aid.  650,  Cas.  on  Contr.  339. 
s  8  Q.  B.  483,  Cas.  on  Contr.  356. 

6  1  Met.  520,  Cas.  on  Contr.  374. 

7  3  Met.  155,  Cas.  on  Contr.  377. 


CONSIDERATION.  99 

intention   of  inducing   him   to  do  so,   and   with   the 
full  knowledge  that  a  failure  to  perform  the  promise 
might  place  the  promisee  in  a  worse  position  than  if 
the  promise  had  never  been  made.     Those  who  have 
held  such  promises  to  be  binding  have  not  based  their 
opinion  upon  the  notion  of  moral  consideration,  but 
have  claimed  that  there  was  a  sufficient  common-law 
consideration.     This  view,  like  tliat  of  supporting  a 
promise  by  means  of  an  antecedent  moral  obligation, 
originated  in   Lord    Mansfield's    time,   and  was   con- 
spicuously put  forward  in  Pillans  v.  Van  Mierop.^     It 
was  also  the  ground  of  the  decision  in  Alliance  Bank 
V.  Broom  ;2  and  it  was  stated  by  Blackburn,  J.,  to  be 
the  ground  of  the  decision  in  Cook  v.  Wright.^     The 
view  in  question,  however,  really  rests  upon  the  notion 
of   moral   obligation,  its    peculiarity  being   that   the 
moral  obligation,  instead  of  preceding  the  promise,  is 
created   by  the  promise.     This  was  the   only  ground 
for  supporting  the  promise   either  in  Pillans  v.  Van 
Mierop  or  in   Alliance   Bank    v.   Broom.     The   way 
in  which  a  common-law  consideration  was  attempted 
to  be  found  in  these  cases  was  by  saying  that  the 
promisee's  changing  liis  position  in  reliance  upon  the 
promise  constituted  the  consideration ;   but  there  are 
several  conclusive  objections  to  that  view.    1st.  There 
was  no  evidence  that  the  promisee  had  in  fact  changed 
his   position,  nor  was  any  such   evidence   held  to  be 
necessary:  what  the  court  went  upon  was  the  proba- 
bility that  the  promisee  would  change  his  position. 
2dly.     If  the  promise  was  binding  at  all,  it  was  bind 

1  3  Burr.  16153,  Gas.  on  Contr.  177,  180,  184-186. 

2  2  Dr.  &  Sm.  289,  Cas.  on  Contr.  279. 

8  1  Best  &  S.  559,  Cas.  on  Contr.  308,  313-314. 


100  CONSIDERATION. 

ing  from  the  moment  when  it  was  made,  and  it  was 
so  held  ;  yet  that  could  not  be  if  the  consideration 
was  something  to  be  afterwards  done  by  the  promisee. 
3dly.  If  it  had  appeared  that  the  promisee  had 
changed  his  position,  his  doing  so  would  not  have 
constituted  a  consideration  for  the  promise,  for  the 
reason  that  the  promise  was  not  in  fact  made  on  any 
such  consideration.  If  it  had  been,  what  is  called 
the  promise  would  have  been  only  an  offer  upon  con- 
dition of  the  promisee's  doing  the  act  in  question  ; 
but  in  fact  the  promise  was  absolute  in  its  terms,  and 
its  only  condition  was  the  condition  (implied  by  law) 
of  its  acceptance.  Finally,  if  the  decision  in  Alliance 
Bank  v.  Broom  is  correct,  it  follows  that  the  diffi- 
culties raised  in  Semple  v.  Pink,^  and  in  Oldershaw  v. 
King,2  were  imaginary.  As  to  the  moral  obligation 
created  by  the  promise,  that  is  even  more  delusive  as 
a  ground  of  decision  than  an  antecedent  moral  obliga- 
tion ;  for  every  promise  which  excites  in  the  promisee 
an  expectation  of  performance  creates  such  an  obli- 
gation, and  every  binding  promise  is  supposed  to 
excite  such  an  expectation,  the  only  difference  between 
one  promise  and  another  in  this  respect  being  one  of 
degree.^  The  two  cases  in  question,  therefore,  can 
only  be  supported  upon  a  principle  which  would  ren- 
der a  consideration  unnecessary  in  any  case,*  and  thus 
destroy  all  distinction  in  that  respect  between  our 
law  and  the  civil  law.     It  is  by  no  means  clear  that 

1  1  Exch.  74,  Cas.  on  Contr.  272. 

2  2  H.  &  N.  399,  517,  Cas.  on  Contr.  274. 
8  Austin,  vol.  3,  p.  128,  1st  ed. 

*  Per  Lord  Denman,  Eastwood  v.  Kenyon,  11  Ad.  &  El.  438,  Caa 
on  Contr.  843,  351. 


CONSroERATION.  101 

Lord  Mansfield  would  have  shrunk  from  this  latter 
consequence.^ 

8.  Consideration  Void  in  Part. 

80.  When  an  offer  is  made  for  a  specified  consider- 
ation, no  promise  arises  until  the  consideration  is  fully- 
performed  ;  and  if  the  consideration  consists  of  several 
things,  of  course  they  must  all  be  performed.^  So  if 
any  part  of  a  specified  consideration  be  illegal,  the 
illegality  will  affect  the  whole,  and  there  will  be  no 
binding  promise.^  But  it  is  not  necessary  that  every 
part  of  what  is  specified  as  the  consideration  should 
be  a  consideration  ;  if  a  good  consideration  can  be 
found  among  the  things  specified,  it  is  the  same  as  if 
that  alone  had  been  specified  as  the  consideration.^ 
In  King  v.  Sears  ^  the  plaintiff's  permitting  the  widow 
to  quit  the  premises  at  the  next  quarter-day,  and  for- 
bearing to  distrain  her  goods  for  the  rent  to  become 
due  at  the  next  quarter-day,  constituted  no  considera- 
tion for  the  defendant's  promise,  as  the  widow  had  a 
right  to  quit  the  premises  when  she  chose,  and  the* 
plaintiff's  right  to  distrain  was  limited  to  the  rent 
already  due  ;  but  the  forbearing  to  distrain  for  the 
rent  already  due  constituted  a  sufficient  consideration. 

1  See  Lee  v.  Muggeridge,  5  Taunt.  36,  Cas.  on  Contr.  333,  334 ; 
Eastwood  V.  Kenyon,  11  Ad.  &  El.  438,  Cas.  on  Contr.  351,  353,  note. 

2  Colston  V.  Carre,  Cro.  Eliz.  847,  848,  Cas.  on  Contr.  401,  402, 
note. 

3  Best  V.  Jolly,  1  Sid.  38,  Cas.  on  Contr.  402. 

*  Cripps  V.  Golding,  1  Rol.  Abr.  30,  Cas.  on  Contr.  401 ;  Brad- 
burne  v.  Bradburne,  Cro.  Eliz.  149,  Cas.  on  Contr.  401 ;  Colston  v. 
Carre,  1  Rol.  Abr.  30,  Cas.  on  Contr.  401 ;  Crisp  v.  Gamel,  Cro.  Ji& 
128,  Cas.  on  Contr.  402. 

6  2  C.  M.  &  R.  48,  Cas.  on  Contr.  403. 


102  CONSIDERATION. 

Parke,  B,,  seems  to  liave  been  clearly  wrong  in  saying 
that  the  giving  up  of  the  bill  of  exchange  was  a  con- 
sideration. The  declaration  stated  it  only  as  a  con- 
dition, to  be  performed  concurrently  with  the  making 
of  the  last  payment.  If  it  had  been  a  part  of  the 
consideration,  there  would  have  been  no  promise,  as 
the  declaration  admitted  that  the  bill  had  not  been 
given  up.  It  has  been  said  that,  where  there  are  two 
considerations  for  a  promise,  and  one  is  good  and  the 
other  is  void,  damages  shall  be  given  only  in  respect 
to  the  good  consideratioji.-^  But  there  seems  to  be  no 
sufficient  reason  for  this,  as  damages  are  given,  not  in 
respect  to  the  consideration,  but  in  respect  to  the 
promise.2 

9.  Mutual  Promises. 

81.  In  treating  of  consideration  hitherto,  it  has 
been  assumed  that  there  was  a  promise  on  one  side 
onl}'^.  In  that  case,  the  contract  is  unilateral,  con- 
sisting of  a  promise  on  one  side,  and  something  given 
or  done  (not  promised  to  be  given  or  done)  on  the 
other  side.  If  there  is  a  promise  on  each  side,  and 
yet  but  one  contract,  the  contract  is  bilateral ;  and 
if  the  making  of  a  promise  is  the  only  thing  given 
or  done  on  either  side,  the  contract  is  purely  bilateral, 
and  of  course  neither  promise  has  any  other  consider- 
ation than  the  counter-promise.  Before  the  introduc- 
tion of  the  action  of  assumpsit,  a  mere  promise  was 
not  a  consideration,  as   it    could   not  create  a  debt; 

1  Crisp  ami  Golding,  1  Leon.  290,  Cas.  on  Contr.  401,  n.  (1) ;  Best 
V.  Jolly,  1  Sid.  88,  Cas.  on  Contr.  402.  And  see  per  Parke,  J.,  in  Smith 
V.  Algar,  1  B.  &  Ad.  603,  Cas.  on  Contr.  260,  2G1. 

2  I-eake,  Contr.  (2d  ed.)  1052. 


CONSIDERATION.  103 

and  hence  purely  bilateral  contracts,  not  under  seal, 
had  then  no  existence  in  our  law.  But  when  it  had 
become  established  that  anything  of  value  given  or 
done  by  the  promisee  might  be  made  the  consideration 
for  a  promise,  the  courts  were  not  long  in  perceiving 
that  the  making  of  a  binding  promise  was  giving  or 
doing  something  of  value,  and  hence  that  such  prom- 
ises were  entitled  to  be  admitted  into  the  category  of 
sufficient  "considerations."  ^  Hence  the  introduction 
of  bilateral  contracts  not  under  seal  was  one  of  the 
great  changes  wrought  in  our  law  of  contracts  by 
means  of  the  action  of  assumpsit. 

82.  A  promise,  regarded  as  the  consideration  for 
another  promise,  is  governed  by  the  same  rules  as 
any  other  consideration,  except  when  a  difference  is 
necessarily  caused  by  the  difference  between  giving  or 
doing  a  thing  and  promising  to  give  or  do  it.  For 
example,  when  mutual  promises  are  the  consideration 
for  each  other,  it  is  a  rule  that  both  promises  must,  in 
legal  contemplation,  be  made  at  the  same  moment  of 
time  ;  otherwise  both  will  be  without  consideration. 
This,  however,  is  only  a  special  application  of  the 
general  rule  that  the  promise  and  the  consideration 
must  be  simultaneous.  So  the  rule  that  both  the 
mutual  promises  must  be  binding,  or  neither  will  be, 
is  only  an  application  of  the  rule  that  a  consideration 
must  have  some  value  in  the  eye  of  the  law ;  for  if 
one  of  the  pi'omises  is  for  any  reason  invalid,  of  course 
the  other  has  no  consideration,  and  so  they  both  fall. 
It  was  once  doubted  whether  a  woman  is  bound  by  a 

1  Strangborougli  and  Warner,  4  Leon,  3,  Cas.  on  Contr.  394  (1588) ; 
Gower  v.  Capper,  Cro.  Eliz.  543,  Cas.  on  Contr.  395  (1597) ;  Nichols 
V.  Raynbrcd,  Hobart,  88,  Cas.  on  Contr.  395  (1615K 


104  CONSIDERATION. 

promise  to  marry,  and  the  argument  which  tlie  court 
deemed  most  conchisive  in  the  affirmative  was  that, 
unless  the  woman  is  bound,  tlie  man  cannot  be  bound. ^ 
But  the  court  refused  (and  perhaps  rightly)  to  carry 
this  rule  to  the  extent  of  holding  that  a  bilateral  con- 
tract between  an  infant  and  an  adult  is  not  binding  on 
the  latter  because  not  binding  on  the  former.^  The 
promise  of  an  infant,  though  not  binding,  is  not  a 
nullity ;  it  can  be  made  binding  by  a  ratification  after 
the  infant  comes  of  age ;  and  if  an  action  be  brought 
upon  it  after  the  infant  comes  of  age,  the  defendant 
may  waive  the  defence  of  infancy  by  not  setting  it  up. 
As  an  infant's  promise,  therefore,  is  a  thing  of  which 
the  law  takes  notice  for  certain  purposes,  it  must,  it 
seems,  be  deemed  of  some  value  in  the  eye  of  the 
law. 

83.  The  rule  that  the  consideration  of  a  promise 
must  move  from  the  promisee  makes  it  necessary,  in 
case  of  mutual  promises,  that  it  should  also  move  to 
the  promisor ;  for  if  A  should  make  a  promise  to  B 
in  consideration  of  B's  making  a  promise  to  C,  B's 
promise  to  C  would  be  invalid  for  want  of  a  consider- 
ation moving  from  C,  and  hence  A's  promise  would 
have  no  consideration.  This  is  only  saying  in  another 
form  that  two  promises  cannot  be  the  consideration  of 
each  other  unless  they  are  mutual. 

84.  It  will  sometimes  happen  that  a  promise  to  do 
a  thing  will  be  a  sufficient  consideration  when  actually 
doing  it  would  not  be.  Thus,  mutual  promises  will 
be  binding,  though  the  promise  on  one  side  be  merely 


1  Harrison  v.  Cage,  5  Mod.  411,  Cas.  on  Contr.  396. 

2  Holt  V.  Ward,  2  Str.  937,  Cas.  on  Contr.  397. 


CONSIDERATION.  105 

to  do  a  thing  which  the  promisee  is  already  bound  to 
a  third  person  to  do,  and  the  actual  doing  of  which 
would  not,  therefore,  be  a  sufficient  consideration. 
The  reason  of  this  distinction  is,  that  a  person  does 
not,  in  legal  contemplation,  incur  any  detriment  by 
doing  a  thing  which  he  was  previously  bound  to  do, 
but  he  does  incur  a  detriment  by  giving  another  per- 
son the  right  to  compel  him  to  do  it,  or  the  right  to 
recover  damages  against  him  for  not  doing  it.  One 
obligation  is  a  less  burden  than  two  (z.  e.  one  to  each 
of  two  persons),  though  each  be  to  do  the  same  thing. 
If  this  distinction  had  been  borne  in  mind  in  Shadwell 
V.  Shadwell,^  and  in  Scotson  v.  Pegg  ^  (in  both  of  which 
the  contract  declared  on  was  unilateral),  the  decision 
might  have  been  different.  Baily  v.  Croft ^  seems  to 
turn  upon  this  distinction  ;  for  the  plaintiff's  promise 
to  accept  a  new  bill,  being  made  to  the  defendant  as 
well  as  to  Bennet,  served  as  a  consideration  for  a 
promise  by  each  of  the  latter  to  the  plaintiff.  Perhaps 
also  the  actual  acceptance  of  the  new  bill  by  the 
plaintiff  might  have  been  made  a  consideration  for 
two  unilateral  promises  to  plaintiff,  one  by  defendant 
and  one  by  Bennet;  but  plaintiff  having  bound  him- 
self to  Bennet  to  accept  a  new  bill,  his  actual  accept- 
ance of  it  could  not  have  been  a  consideration  for  a 
promise  by  defendant.  In  Bret  v.  J.  S.  and  Wife* 
it  does  not  distinctly  appear  whether  there  was  a 
promise  by  the  plaintiff  to  the  defendant,  but  it 
seems  that  there  must  have  been,  to  support  the 
decision. 

1  30  L.  J.  C.  P.  145,  Cas.  on  Contr.  233. 

2  6  H.  &  N.  295,  Cas.  on  Contr.  240. 
8  4  Taunt.  611,  Cas.  on  Contr.  199. 
*  Cro.  Eliz.  756,  Cas.  on  Contr.  192. 


106  CONSIDERATION. 

85.  When  the  thing  to  be  done  by  one  of  the  parties 
to  a  contract  is  negative,  i.  e.  consists  in  forbearing  to 
do  a  certain  thing  (g.  ^.  to  sue),  and  the  forbearance 
is  to  be  perpetual,  and  not  for  a  limited  time,  the 
contract  can  only  be  bilateral ;  for  if  the  offer  on  the 
other  side  should  be  in  consideration  of  actual  forbear- 
ance, the  consideration  could  never  be  fully  performed, 
and  so  the  promise  could  never  arise. 

86.  In  many  cases  also  in  which  it  is  possible  to 
make  performance  on  one  side  the  consideration  for  a 
promise  on  the  other  side,  it  is  not  advisable  to  do  so, 
for  the  reason  that  the  promisor  is  not  bound  until 
the  performance  is  completed,  his  offer  (for  such  it  is) 
being  revocable  in  the  mean  time  either  by  his  own 
act  or  by  the  act  of  God.  In  particular,  when  the 
contract  is  for  services  which  are  not  to  be  paid  for 
until  they  are  fully  performed,  the  contract  should 
always  be  bilateral ;  and  hence  it  will  always  be  pre- 
sumed, in  the  absence  of  strong  evidence  to  the  con- 
trary, that  the  parties  intended  to  make  it  bilat- 
eral (4). 

87.  The  kind  of  agreement  known  as  an  accord, 
i.  e.  an  agreement  for  the  compromise  or  settlement 
of  a  debt  or  other  cause  of  action,  is  bilateral.  Of 
course  a  unilateral  promise  may  be  made  by  the  debtor 
in  consideration  of  the  actual  extinguishment  of  the 
debt  (which  can  only  be  by  release),  or  by  the  cred- 
itor to  extinguish  the  debt  in  consideration  of  some- 
thing actually  given  or  done  by  the  debtor;  but  neither 
of  these  is  what  is  meant  by  an  accord,  which  is 
executory  on  both  sides.  It  was  formerly  held  that 
an  accord  could  not  be  enforced  by  action,  either 
because  mutual  promises  wei'e  not  binding,  or  because 


CONSIDERATION.  107 

the  law  would  not  enforce  an  agreement  which  merely- 
substituted  one  cause  of  action  for  another,  or  for  both 
of  these  reasons.  The  first  reason  of  course  has  long 
ceased  to  exist,  and  the  second  would  now,  it  seems, 
be  disregarded.  A  cause  of  action  may  indeed  be 
settled  and  extinguished  without  any  previous  binding 
agreement ;  and  if  with  that  view  the  parties  merely 
agree  upon  terms  of  settlement  without  intending  to 
make  a  contract,  of  course  they  will  not  be  bound. 
It  was  contended  by  the  defendant  that  such  was  the 
intention  of  the  parties  in  Crowther  v.  Farrer,^  but, 
as  the  question  arose  upon  a  motion  in  arrest  of  judg- 
ment, the  allegation  of  mutual  promises  in  the  decla- 
ration was  a  conclusive  answer  to  the  argument. 

88.  In  Anon.2  the  consideration  of  the  defendant's 
promise  was  an  actual  extinguishment  of  the  debt  in 
question ;  hence  it  was  not  a  case  of  an  accord.  In 
Longridge  v.  Dorville  ^  there  was  not  an  accord  in  any 
sense ;  there  was  merely  a  unilateral  promise  in  con- 
sideration of  the  discharge  of  the  vessel  from  custody. 
In  Smart  v.  Chell  *  there  would  have  been  an  accord 
if  the  plaintiff  had  promised  to  receive  the  11.  in  full 
satisfaction  of  his  claim ;  but  as  there  was  neither  an 
extinguishment  of  the  plaintiff's  claim  nor  a  counter- 
promise  by  the  plaintiff,  the  defendant's  promise  was 
without  consideration.  In  Edwards  v.  Baugh  ^  the 
agreement  sued  on  was  in  form  an  accord,  but  it  waa 
rightly  held  to  be  invalid,  as  it  did  not  appear  that 


1  15  Q.  B.  677,  Gas.  on  Coiitr.  301,  303. 

2  1  Sid.  31,  pi.  9,  Cas.  on  Contr.  284. 
8  5  B.  &  Aid.  117,  Cas.  on  Contr.  285. 

4  7  Dowl.  Pr.  Cas.  781,  Cas.  on  Contr.  288. 
8  11  M.  &  W.  G41,  Cas.  on  Contr.  290. 


108  CONSIDERATION. 

the  plaintiff  had  any  cause  of  action,  an  accord  being 
in  that  respect  like  a  promise  made  in  consideration 
of  forbearance.  If  the  plaintiff  had  alleged  that  the 
amount  claimed  by  him  was  actually  due  from  the 
defendant,  there  would  still  have  been  a  difficulty,  for 
then  the  defendant's  promise,  being  simply  to  pay  the 
plaintiff  a  part  of  what  was  due  to  him,  would  have 
been  no  consideration  for  the  plaintiff's  promise,  and 
so  both  promises  would  have  fallen  to  the  ground. 
Both  of  these  difficulties  might,  however,  have  been 
avoided,  at  least  so  far  as  the  declaration  was  con- 
cerned, by  alleging  that  the  amount  claimed  was  due, 
and  that  the  defendant  promised  to  pay  the  plaintiff 
100/.  (not  in  satisfaction  of  the  debt  or  any  part  of 
it,  but)  in  consideration  of  plaintiff's  promising  never 
to  sue  for  the  debt.  The  case  would  then  have  been 
like  Reynolds  v.  Pinhowe.^  If  the  mutual  promises 
had  been  simply  that  the  defendant  should  pay,  and 
the  plaintiff  should  receive,  100/.  in  full  satisfaction 
of  a  larger  sum  due,  neither  promise  would  have  been 
any  consideration  for  the  other,  one  being  merely  to 
do  a  part  of  what  the  promisor  was  already  bound  to 
do,  and  the  other  being  inoperative,  as  a  smaller 
sum  cannot  satisfy  a  larger  sum.  In  Llewellyn  v. 
Llewellyn  ^  it  is  not  clear  whether  the  plaintiff 
intended  to  declare  on  a  unilateral  contract  or  on  a 
bilateral  contract;  bufin  either  view  the  declaration 
seems  to  be  bad,  for  it  neither  states  that  the  plaintiff 
did  anything,  nor  that  he  promised  to  do  anything,  as 
a  consideration  for  the  defendant's  promise.  It  is  not 
stated  that  the  plaintiff  released  his  alleged  cause  of 

1  Cro.  Eliz.  429,  Gas.  on  Ccntr.  191. 

2  3  Dowl.  &  L.  Pr.  Cas.  318,  Gas.  on  Contr.  294. 


CONSIDERATION.  109 

action,  nor  that  he  made  any  promise  except  to  give 
up  his  claim  upon  the  defendant,  and  that  would  seem 
to  mean  nothing.  But  even  if  the  plaintiff  had  de- 
claimed properly  upon  mutual  promises,  the  plaintiff's 
promise  being  to  "  give  up,  relinquish,  and  forbear  to 
prosecute"  his  claim  against  the  defendant,  it  would 
be  difficult  to  reconcile  the  decision  with  that  in 
Edwards  v.  Baugh.  The  declaration  states  that  there 
were  open  and  unsettled  accounts  between  the  parties 
(which  must  be  taken  to  mean  that  there  were  items 
in  the  accounts  showing  an  indebtedness  to  the  de- 
fendant, as  well  as  items  showing  an  indebtedness  to 
the  plaintiff),  but  it  is  nowhere  alleged  that  there 
was  a  balance  in  favor  of  the  plaintiff" ;  and  if  there 
was  not,  the  plaintiff  had  no  ground  of  action.  In 
Smyth  V.  Holmes  ^  the  agreement  declared  on  was  in 
form  an  accord,  but  it  was  not  shown  to  be  valid  as 
such,  because  it  was  not  alleged  that  the  claim  which 
was  the  subject  of  it  was  well  founded.  Yet  the  de- 
fendant's promise  was  binding,  being  supported  by 
another  sufficient  consideration,  namely,  the  plaintiff's 
promise  to  relinquish  the  rights  secured  to  him  by  the 
deed  of  submission.  In  Henderson  v.  Stobart  ^  the 
defendant,  being  liable  to  the  plaintiff  as  one  of  several 
joint  acceptors  of  a  bill  of  exchange  for  1250Z.,  prom- 
ised to  give  the  plaintiff  his  individual  promissory 
note  for  500^.,  in  satisfaction  and  discharge  of  his 
liability  on  the  bill,  and  the  plaintiff  promised  to  accept 
the  note  in  such  satisfaction  and  discharge.  These 
mutual  promises  constituted  a  valid  accord.  The  de- 
fendant assumed  a  new  liability,  and  so  his  promise 

1  10  Jur.  8G2,  Cas.  on  Contr.  297. 

2  6  Exch.  99,  Cas.  on  Contr.  299. 


110  CONSIDERATION. 

was  a  sufficient  consideration  for  the  plaintiff's  promise 
The  plaintiff's  promise  also  was  a  sufficient  consider* 
ation  for  the  defendant's  promise,  as  the  note  would 
extinguish  the  defendant's  liability  on  the  bill,  if 
received  by  the  plaintiff  as  an  extinguishment  ac- 
cording to  his  promise.  Even  if  the  agreement  had 
been  invalid  as  a  mere  accord,  it  would,  it  seems,  have 
been  rendered  valid  by  the  incidental  and  collateral 
promises  made  by  the  plaintiff  and  defendant  respec- 
tively to  each  other.  In  Crowther  v.  Farrer  ^  there 
was  clearly  a  good  consideration  for  the  defendant's 
promise,  it  being  the  plaintiff's  promise  to  forbear 
perpetually  the  prosecution  of  two  pending  actions ; 
and  it  was  not  necessary  to  allege  that  the  actions 
were  well  founded.  Nash  v.  Armstrong  ^  is  also  a  plain 
case,  the  consideration  for  the  defendant's  promise 
being  the  plaintiff's  promise  to  forego  his  right  to 
have  the  amount  of  rent  fixed  in  the  mode  provided 
in.  the  lease.  If  no  promise  had  been  made  by  the 
plaintiff  Qi.  e.  if  the  contract  had  been  unilateral),  the 
defendant's  promise  would  have  been  without  consid- 
eration. The  case  of  Lynn  v.  Bruce  ^  furnishes  an 
instance  of  an  invalid  accord ;  for  the  defendant's 
promise  to  pay  only  a  part  of  what  he  already  owed 
was  no  consideration  for  the  plaintift''s  promise  ;  and 
the  plaintiff's  promise  to  receive  a  part  of  what  was 
due  to  him  in  satisfaction  of  the  whole  (which  by  law 
he  could  not  do)  was  no  consideration  for  the  defend- 
ant's promise.  But  if  the  defendant  had  promised  to 
pay  the  plaintiff  any  sum,  however  small,  in  consider- 

1  15  Q.  B.  677,  Cas.  on  Contr.  301. 

2  10  C.  B.  N.  8.  259,  Cas.  on  Contr.  304. 
8  2  H.  Bl.  317,  Cas.  on  Contr.  399. 


CONSIDERATION.  Ill 

ation  of  a  promise  by  the  plaintiff  to  release  the  debt, 
there  would  have  been  a  binding  accord. 

89.  It  is  no  objection  to  a  promise  as  a  consideration 
for  another  promise,  that  it  is  conditional  upon  some 
future  and  uncertain  event ;  but  a  promise  which  is 
in  terms  conditional  upon  the  present  existence  of 
some  fact  is  not,  in  truth,  a  conditional  promise.  If 
the  fact  exists,  the  promise  is  absolute ;  if  it  does  not 
exist,  no  promise  is  made.^  When,  therefore,  one  of 
two  mutual  promises  fails,  for  the  reason  just  stated, 
it  seems  impossible  to  find  any  consideration  for  the 
other  promise.  Thus,  if  a  wager  be  made  by  mutual 
promises  upon  a  race  which  has  already  taken  place, 
but  the  result  of  which  is  unknown  to  the  parties,  it 
is  the  losing  party  alone  who  promises,  and  he  really 
receives  no  consideration  for  his  promise.  So  in  other 
contracts  (especially  in  charter-parties),  one  of  the 
mutual  promises  not  unfrequently  falls  to  the  ground 
because  of  the  non-existence,  at  the  time  of  making 
the  contract,  of  some  fact  upon  which  the  promise 
purports  to  be  conditional  (28).  This  distinction, 
however,  has  not  been  taken  by  the  courts,  and  all 
such  promises  as  the  foregoing  have  been  assumed  to 
be  properly  conditional,  and  hence  to  be  a  sufficient 
consideration  for  a  counter-promise.  In  March  v. 
Pigott^  the  point  was  actually  involved  in  the 
decision,  though  it  was  not  noticed  by  the  court. 
Perhaps,  therefore,  this  is  a  case  in  which  the  maxim 
communis  error  facit  jus  may  properly  be  applied. 

1  Pothier,  Traite  des  Obligations,  Part.  2,  c.  3,  art  1,  §  2. 
a  6  Burr.  2802. 


112  CONSIDERATION. 


10.  Executed  Consideration. 

90.  When  the  action  of  assumpsit  was  becoming 
the  ordinary  remedy  for  the  recovery  of  debts  by 
simple  contract,  a  difficulty  was  experienced  from  the 
fact  that  a  promise  was  indispensable  to  that  action, 
while  debts  were  often  created  without  any  actual 
promise.  To  obviate  this  difficulty,  and  to  make 
assumpsit  an  available  remedy  in  the  latter  class  of 
cases,  the  courts  invented  the  fiction  that,  wherever 
there  was  a  simple-contract  debt,  the  law  would  imply 
a  promise  to  pay  it.  A  consequence  of  this  was  to 
give  generally  two  modes  of  declaring  in  assumpsit 
for  the  recovery  of  a  debt,  namely,  either  upon  the 
actual  promise  (for  in  most  cases  of  course  there  was 
an  actual  promise)  or  upon  the  promise  implied  by 
law.  From  these  two  modes  of  declaring,  the  two 
classes  of  counts  known  respectively  as  special  counts 
and  common  counts  came  into  use ;  the  latter  being 
used  when  a  factitious  .implied  promise  was  declared 
upon,  and  the  former  in  all  other  cases.  Of  course 
the  common  counts  could  be  used  only  where  there 
was  a  debt  (as  it  was  in  such  cases  only  that  the  law 
implied  a  promise),  and  hence  they  were  also  called 
indebitatus  counts.  As  the  implied  promise  was  a 
mere  creature  of  the  law,  of  course  it  was  neither 
necessary  nor  possible  that  it  should  have  a  considera- 
tion in  the  proper  sense  of  that  term ;  yet  it  came  to 
be  the  practice,  in  declaring  upon  an  implied  promise, 
to  follow  the  analogy  of  a  declaration  upon  an  actual 
promise,  by  alleging  that  the  promise  was  made  in 
consideration  of  the   indebtedness ;   and  hence  origi- 


CONSIDERATION.  118 

nated  the  notion  of  a  past  or  executed  consideration. 
As  an  implied  promise  does  not  constitute  any  part  of 
the  plaintiff's  cause  of  action,  and  as  an  executed 
consideration  will  not  support  any  other  than  an 
implied  promise,  of  course  it  follows  that  a  declara- 
tion on  an  executed  consideration  will  never  be  good 
unless  it  states  a  good  cause  of  action  (i.  e.  a  debt) 
independently  of  the  promise.  If  this  simple  rule 
had  always  been  understood  and  applied,  the  subject 
of  executed  consideration  would  have  caused  no 
trouble ;  but  unfortunately  it  was  not  understood 
until  within  recent  times.  On  the  contrary,  the 
opinion  long  prevailed  that  an  executed  consideration 
which  had  been  performed  at  the  defendant's  request 
would  support  a  subsequent  actual  promise  ;  and  hence 
it  would  follow  that  a  declaration  would  never  be  bad 
because  upon  an  executed  consideration,  provided  a 
request  was  alleged. 

91.  This  view  is  clearly  untenable  for  several 
reasons :  First,  it  makes  an  exception  to  the  rule 
requiring  a  consideration  to  support  a  promise,  which 
is  repugnant  to  the  rule  itself ;  for,  the  consideration 
having  been  parted  with  irrevocably  before  the  mak- 
ing of  the  promise,  the  plaintiff  suffers  the  same 
detriment,  and  the  defendant  receives  the  same  benefit, 
whether  the  promise  be  made  or  not,  and  hence  the 
promise  is  without  consideration.  Again,  as  it  is 
optional  with  the  defendant  to  promise  or  not,  as  he 
has  nothing  to  gain  by  promising,  and  nothing  to  lose 
by  refusing  to  promise,  it  follows  that  the  promise  is 
purely  voluntary.  Secondly,  it  is  admitted  that  such 
a  promise  is  not  binding  unless  the  consideration  be 
alleged  to  have  been   performed  at  the  defendant's 

8 


114  CONSIDERATION. 

request ;  and  yet  the  allegation  of  a  request  has  no 
effect  except  in  those  cases  in  which,  as  will  be  seen 
hereafter,  it  constitutes  one  of  the  elements  of  a  debt. 
Thus,  if  a  declaration  allege  that,  the  plaintiff  having 
sold  goods  to  A  upon  credit  at  the  defendant's  request, 
the  latter,  in  consideration  thereof,  promised  to 
guarantee  the  payment,  the  allegation  of  the  request 
will  not  aid  the  plaintiff ;  for  it  can  only  mean  that 
the  defendant  requested  the  sale  as  a  favor  either  to 
A  or  to  himself.  Such  a  request  may,  indeed,  be 
made  under  such  circumstances  as  to  import  a  promise 
by  the  defendant  to  indemnify  the  plaintiff  for  making 
the  sale ;  but  in  that  case  the  plaintiff  must  declare 
upon  a  promise  made  at  the  time  of  the  sale,  and  use 
the  request  as  evidence  of  the  promise ;  and  a  subse- 
quent promise,  if  one  was  made,  may  furnish  further 
evidence  to  the  same  effect.  Thirdly,  if  a  considera- 
tion performed  at  the  defendant's  request  will  support 
a  subsequent  actual  promise  at  all,  it  will  support  any 
promise  that  the  defendant  chooses  to  make,  and  at 
any  time,  however  distant.  Yet  this  latter  proposition 
will  be  admitted  by  every  one  to  be  untenable. 
Indeed,  it  was  never  claimed  that  an  executed  consid- 
eration would  support  a  subsequent  promise  generally, 
but  only  a  promise  commensurate  with  the  considera- 
tion, i.  e.  one  which  would  simply  compensate  or 
indemnify  the  plaintiff  for  performing  the  considera- 
tion. The  rule,  therefore,  that  an  executed  con- 
sideration will  support  an  express  promise  is  proved 
to  be  unsound  by  the  arbitrary  limitations  which  it  is 
found  necessary  to  impose  upon  it. 

92.   The  courts  seem  formerly  to   have   proceeded 
upon   the   tlieory,  either  that  the  consideration  con- 


CONSIDERATION.  115 

tinned  nntil  the  making  of  the  promise,^  or  that  the 
promise  related  back  to  the  time  of  performing  the 
consideration.^  As  to  the  former,  it  could  only  mean 
that  the  benefit  of  the  consideration  must  be  presumed 
to  continue ;  which  may  be  true,  but  is  irrelevant. 
As  to  the  latter,  such  a  relation  must  be  a  pure  fiction, 
and  a  fiction  can  never  be  the  foundation  of  an  obliga- 
tion. In  fictione  juris  semper  cequitas  existit.  The 
courts  may  also  have  been  influenced  by  two  practical 
reasons,  neither  of  which  has  any  existence  now. 
First,  it  was  formerly  held  that  no  promise  could  be 
implied  in  fact  from  a  request  to  execute  a  considera- 
tion.^ Secondly,  the  execution  of  a  consideration  upon 
request  seldom  created  a  debt  formerly,  as  a  debt 
could  not  exist  unless  the  amount  of  it  was  fixed. ^ 
Between  these  two  objections,  therefore,  a  subsequent 
promise  furnished  almost  the  only  means  of  recover- 
ing a  compensation  or  indemnity  for  a  consideration 
executed  upon  request,  and  without  any  express 
promise. 

93.  The  old  view  seems  to  have  still  prevailed  when 
the  case  of  Hayes  v.  Warren^  was  decided  (1732), 
but  it  cannot  be  traced  any  later.  In  Rann  v. 
Hughes^  (1778),  it  was  held  by  the  highest  authority 

1  Per  Coke,  arguendo,  in  Pearle  and  Edwards,  1  Leon.  102,  Cas.  on 
Contr.  408;  per  Walmsley,  J.,  in  Barker  v.  Halifax,  Cro.  Eliz.  741, 
Cas.  on  Contr.  410;  Riggs  v.  Bullingham,  Cro.  Eliz.  715,  Cas.  on 
Contr.  411;  Townsend  v.  Hunt,  Cro.  Car.  408,  Cas.  on  Contr.  418; 
Barton  v.  Shurley,  1  Rol.  Abr.  12,  pi.  16,  Cas.  on  Contr.  419. 

2  Bosden  v.  Thinne,  Yelv.  40,  Cas.  on  Contr.  412 ;  I  ampleigh  v. 
Brathwait,  Hobart,  105,  Cas.  on  Contr.  413,  414. 

8  Bosden  v.  Thinne,  Yelv.  40,  Cas.  on  Contr.  412. 

*  Young  V.  Ashburnhain,  3  Leon.  161. 

6  2  Str.  933,  Cas.  on  Contr.  420. 

«  7  T.  R.  350,  n.  (a),  Cas.  on  Contr.  187. 


116  CONSIDERATION. 

that  a  debt  would  support  no  promise  except  the  one 
which  the  law  would  imply,  and  therefore  that  the 
defendant's  promise  to  pay  personally  a  debt  which 
she  owed  as  administratrix  was  not  binding  without  a 
new  consideration.  So  also  it  was  held  in  Hopkins 
V.  Logan  ^  (1839),  and  for  the  same  reason,  that  a 
promise  to  pay  at  a  future  day  a  debt  already  due 
was  not  binding,  no  consideration  being  stated  except 
the  debt.  In  Roscorla  y.  Thomas  ^  (1842)  the  deci- 
sion went  the  full  length  of  establishing  that  no 
executed  consideration  would  support  any  actual 
promise;  for  there  was  no  debt  in  that  case,  and 
hence  the  law  implied  no  promise,  notwithstanding 
the  remark  of  Lord  Denman  that  the  only  promise 
that  would  result  from  the  consideration  stated  would 
be  to  deliver  the  horse  upon  request.  Kaye  v. 
Dutton  2  (1844)  seems  also  to  have  involved  the 
same  proposition,  for  it  was  agreed  that  there  was  no 
debt  and  no  implied  promise  ;  and  though  the  court 
professed  to  decide  against  the  plaintiff  upon  the 
ground  tliat  there  was  no  consideration,  executed  or 
executory,  yet  it  appears  that  the  plaintiff  had  exe- 
cuted and  delivered  a  deed  of  conveyance  at  the 
defendant's  request,  and  that  surely  would  have  been 
a  sufficient  consideration  for  any  simultaneous  promise. 
None  of  the  foregoing  cases  have  ever  been  questioned, 
and  they  are  undoubtedly  now  regarded  in  England 
as  having  fully  established  the  doctrine  here  contended 
for.*     Nevertheless,  it  was  held  in  Ireland,  in  1858,® 

1  5  M.  &  W.  241,  Cas.  on  Contr.  421. 

2  3  Q.  B.  234,  Cas.  on  Contr.  423. 

8  7  M.  &  G.  807,  Cas.  on  Contr.  425. 

*  See  Leake,  Contracts  (2d  ed.),  19,  613. 

»  Bradford  v.  Roulston,  8  Ir.  C.  L.  468,  Cas.  on  Contr.  432. 


CONSIDERATION.  117 

that  an  executed  consideration  would  support  an 
actual  promise,  provided  it  was  a  consideration  from 
which  no  promise  would  be  implied  by  law.  It  may 
be  observed,  however,  that  the  court  treated  the  ques- 
tion purely  as  one  of  authority,  that  they  gave  too 
little  weight  to  the  decision  in  Roscorla  v.  Thomas, 
and  that  they  attached  far  too  much  importance  to 
cases  which  had  received  no  judicial  recognition  for  a 
century  and  a  quarter. 

94.  What  has  already  been  said  supersedes  the 
necessity  of  making  any  extended  observations  upon 
the  cases  decided  while  the  old  view  prevailed.  In 
Anon.,^  Sidenham  and  Worlington,  ^  Pearle  and 
Edwards,^  Marsh  and  Rainsford,*  Bosden  v.  Thinne,^ 
Townsend  v.  Hunt,^  Sandhill  v.  Jenny,'^  and  Gale  v. 
Golsbury,^  the  declaration  showed  no  cause  of  action, 
as  the  executed  consideration  was  not  of  a  nature 
to  create  a  debt.^  '  In  all  of  them,  however,  except 
Pearle  and  Edwards,  and  Marsh  and  Rainsford  (in 
which  no  consideration  of  any  kind  was  stated),  a 
jury  might  have  found  (consistently  with  the  facta 
stated  in  the  declaration)  a  promise  by  implication  of 
fact  at  the  time    of   performing  the  consideration. ^^ 

1  Cited  in  Hunt  v.  Bate,  Dyer,  272,  Cas.  on  Contr.  406. 

2  2  Leon.  224,  Cas.  on  Contr.  407. 
8  1  Leon.  102,  Cas.  on  Contr.  408. 
*  2  Leon.  Ill,  Cas.  on  Contr.  409. 
6  Yelv.  40,  Cas.  on  Contr.  412. 

«  Cro.  Car.  408,  Cas.  on  Contr.  418. 

'  3  Dyer,  272,  Cas.  on  Contr.  435,  n.  (1). 

8  3  Dyer,  272  b,  Cas.  on  Contr.  435,  n.  (3). 

9  See  Baxter  v.  Read,  3  Dyer,  272,  Cas.  on  Contr.  435,  n.  (2). 

^0  The  statement  in  the  text  seems  to  be  too  broad.  A  premise 
can  be  implied  in  fact  from  a  request  to  execute  a  consideration  only 
when  the  nature  of  the  consideration  is  such  as  to  enable  the  court  to 


118  CONSIDERATIUN. 

In  Jeremy  v.  Goocbman,i  Barker  v.  Halifax,^  Riggs 
V.  BuUingham,^  Docket  v.  Voyel,'*  Field  v.  Dale,^ 
Lampleigh  v.  Brathwait,^  Janson  v.  Coloraore,''  Hodge 
V.  Vavisor,^  Howlet's  Case,^  and  Barton  v.  Sliurley,^^ 
the  declaration  showed  the  existence  of  a  debt  so  far 
as  it  depended  upon  the  nature  of  the  consideration; 
but  in  none  of  them,  except  Barker  v.  Halifax  (in 
which  the  declaration  contained  a  good  count  for 
money  paid  to  the  defendant's  use),  was  the  plaintiff 
entitled  to  recover  upon  the  facts  stated  in  his  declara- 
tion. Thus,  in  Jeremy  v.  Goochman  there  were  at 
least  three  objections  to  the  declaration :  first,  the 
words  "  deliherasset  et  dedisset "  imported  a  gift,  and 
not  a  sale,  of  the  sheep ;  secondly,  it  did  not  appear  that 
the  SI.  was  the  price  of  the  sheep ;  thirdly,  the  prom- 
ise was  to  pay  on  a  future  and  uncertain  event.  So,  in 
Riggs  V.  Bullingham,  it  seems  that  the  words  '■'■dedisset 
et  concessisset^^  did  not  import  a  sale  of  the  advowson, 

fix  the  terms  of  the  promise.  Tlius,  in  Sidenham  and  Worlington 
and  Bosden  v.  Thinne,  supra,  if  a  jury  had  found  tliat  there  was  a 
promise  by  implication  of  fact,  tliere  could  be  no  doubt  as  to  the  terma 
of  the  promise,  for  it  would  clearly  be  a  promise  to  indemnify  the 
plaintiff  for  performing  the  consideration.  But  in  Anon.,  cited  in 
Hunt  V.  Bate,  supra,  and  in  Sandhill  v.  Jenny,  supra,  it  was  impossible 
to  say  what  promise  should  be  implied,  and  therefore  none  could  be 
implied. 

1  Cro.  Elie.  442,  Cas.  on  Contr.  410. 

2  Cro.  Eliz.  741,  Cas.  on  Contr.  410. 

3  Cro.  Eliz.  715,  Cas.  on  Contr.  411. 
*  Cro.  Eliz.  885,  Cas.  on  Contr.  411. 

6  1  Rol.  Abr.  11,  pi.  8,  Cas.  on  Contr.  413. 

6  Hobart,  105,  Cas.  on  Contr.  413. 

7  1  Rol.  3%,  Cas.  on  Contr.  416. 

8  1  Rol.  413,  Cas.  on  Contr.  416. 

9  Latch,  150,  Cas.  on  Contr.  417. 

w  1  Rol.  Abr.  12,  pi.  16,  Cas.  on  Contr.  419. 


CONSIDERATION.  119 

and  even  if  they  did,  it  did  not  appear  that  the  1001. 
was  the  price  of  it.  In  Docket  v.  Voyel  the  loan  of 
SOL  would  only  support  a  promise  to  repay  it  when  it 
became  due.  In  Field  v.  Dale  it  did  not  appear  that 
the  beer  was  sold  at  41.  per  tun,  nor  that  the  price 
was  to  be  paid  in  accordance  with  the  terms  of  the 
promise  stated.  In  Lampleigh  v.  Brathwait  the  con- 
sideration would  only  support  a  promise  to  pay  a 
quantum  meruit  (92).  In  Janson  v.  Colomore,  Hodge 
V.  Vavisor,  Howlet's  Case,  and  Barton  v.  Shurley,  the 
consideration  would  only  support  a  promise  to  pay  on 
request,  i.  e.  immediately.  In  Hunt  v.  Bate  ^  it  seems 
that  the  plaintiff  was  not  entitled  to  recover  in  any 
view:  not  on  the  express  promise  declared  upon,  for 
there  was  no  consideration  for  it;  not  on  a  promise 
implied  in  fact  at  the  time  of  performing  the  con- 
sideration, for  there  was  none ;  not  on  a  promise 
implied  by  law,  for  the  service  did  not  create  a  debt. 
If,  indeed,  the  service  had  created  a  debt  against  any 
one,  it  would  have  been  the  defendant,  for  it  was 
rendered  to  his  apprentice  and  on  his  account,  and, 
though  he  did  not  authorize  it  at  the  time,  yet  he 
ratified  it  by  his  subsequent  promise.  But  a  service 
which  consists  in  becoming  bail  will  not  create  a  debt 
(unless  it  be  as  a  compensation  for  the  mere  trouble), 
and  an  obligation  to  indemnify  is  not  a  debt.^  In 
Oliverson  v.  Wood  ^  it  seems  that  the  count  for  money 

1  Dyer,  272,  Gas.  on  Contr.  406. 

2  In  writing  the  above,  the  fact  was  overlooked  that  the  payment 
of  the  31/.  by  the  plaintiff  created  a  debt  against  the  defendant  for  that 
amount.  The  facts  stated  in  the  declaration  would,  therefore,  it  seems, 
have  entitled  the  plaintiff  to  recover  for  money  paid  to  the  defendant's 
use. 

8  3  Lev.  366,  Cas.  on  Contr.  419. 


120  CONSIDERATION. 

lent  was  a  mere  nullity,  for  it  neither  stated  that  the 
loan  was  made  to  the  defendant  nor  that  it  was  made 
at  his  request. 

95.  As  a  promise  implied  by  law  to  pay  a  debt  is  a 
mere  fiction  and  constitutes  no  part  of  the  plaintifi's 
cause  of  action,  the  defendant  cannot  properly  plead 
to  the  promise,  but  should  plead  to  the  facts  alleged 
as  constituting  the  debt ;  and  although  in  form  the 
defendant  pleads  non  assumpsit,^  yet,  as  the  existence 
of  the  promise  depends  upon  the  truth  of  the  facts 
from  which  it  is  alleged  to  arise,  the  plea  of  non 
assumpsit  has  the  effect  of  putting  those  facts  in  issue. 
The  question  chiefly  discussed  in  Lampleigh  v.  Brath- 
wait^  turned  upon  this  principle. 

96.  When  a  plaintiff  declares  upon  an  implied 
promise  arising  from  a  debt  alleged  to  have  been 
created  by  services  performed  or  money  paid  by  him 
for  the  defendant,  he  must  make  it  appear  that  the 
services  were  performed  or  the  money  paid  by  the 
defendant's  authority,  and  also  that  it  was  not  done 
by  the  plaintiff  gratuitously.  When  a  common  count 
is  employed,  both  of  these  objects  are  accomplished 
by  alleging  that  the  consideration  was  performed  at 
the  defendant's  request ;  and  hence  it  is  a  rule  that, 
in  the  counts  for  services  and  for  money  paid,  a  request 
must  always  be  alleged.^  In  the  other  common 
counts,  however,  namely,  for  goods  sold  and  delivered 
or  bargained  and  sold,  for  money  lent,  for  money  had 
and  received,  and  on  an  account  stated,  it  is  unnecessary 

1  Harris  v.  Ewer,  1  Rol.  Rep.  401,  Cas.  on  Contr.  414,  n.  2. 

2  Hobart,  105,  Cas.  on  Contr.  413. 

3  Oliverson  r.  Wood,  3  Lev.  356,  Cas.  on  Contr.  419;  Hayes  j; 
Warren,  2  Str.  933,  Cas.  on  Contr.  420. 


CONSIDERATION.  121 

to  allege  a  request,  as  a  sale,  a  loan,  and  the  state- 
ment of  an  account  are  necessarily  the  acts  of  both 
parties,  and  the  receipt  of  money,  upon  which  a  count 
for  money  had  and  received  lies,  is  the  act  of  the 
defendant  alone. ^  It  not  un frequently  happens,  how- 
ever, that  the  request  alleged  in  the  count  for  money 
paid  does  not  have  to  be  proved ;  and  it  is  commonly 
said  that  the  request  in  such  cases  is  implied.^  But 
this  is  not  strictly  correct ;  a  request  does  not  have  to 
be  proved,  because  no  request  is  necessarj^  the  debt 
being  created  by  operation  of  law  and  without  the 
defendant's  consent.  The  facts,  however,  out  of 
which  the  law  creates  the  debt,  have  to  be  proved, 
and  in  strictness  the  plaintiff  ought  to  allege  them 
instead  of  alleging  a  request ;  but  as  this  could  not 
easily  be  done  in  a  common  count,  he  is  permitted  to 
declare  in  the  usual  form  for  money  paid  for  the 
defendant  at  his  request,  and  then,  instead  of  proving 
that  the  money  was  paid  at  the  defendant's  request, 
he  may  prove  that  it  was  paid  under  cii'cumstances 
which  will  create  a  debt  by  operation  of  law.  ^  This 
laxity  doubtless  originated  in  a  desire  to  facilitate  and 
extend  the  use  of  the  common  counts  ;  and  wherever 
those  counts  have  gone  out  of  use,  a  request  should  be 
alleged  only  when  it  has  to  be  proved. 

97.  It  is  only  when  the  declaration  is  upon  an 
executed  consideration  that  it  is  necessary  to  allege  a 
request  in  terms.* 

1  Victors  V.  Davies,  12  M.  &  W.  758,  Gas.  on  Contr.  430. 

2  1  Smith's  Lead.  Cas.  (1st  ed.)  70. 

3  Leake,  Contr.  (2d  ed.)  77. 

*  King  V.  Sears,  2  C.  M.  &  R.  48,  Cas.  on  Contr.  403,  405,  per 
Parke,  B. 


122  CONSIDERATION. 

98.  As  the  fiction  of  a  promise  implied  by  law  from 
an  executed  consideration  was  invented  merely  to 
render  the  action  of  assumpsit  a  moi'e  extensive  and 
available  remedy,  it  follows  that  such  promises  can 
have  no  existence  in  places  where  the  action  of 
assumpsit  has  been  abolished,  and  hence  in  such 
places  the  phrase  "  executed  or  past  consideration " 
has  ceased  to  have  any  legal  meaning. 


DEBT.  123 


DEBT. 


99.  The  original  and  normal  mode  of  creating  n 
debt  was  by  a  loan  of  money.  In  that  transaction, 
therefore,  the  true  nature  of  a  debt  must  be  sought. 
The  subject  of  a  loan  may  be  either  a  specific  thing, 
as  a  horse,  or  a  given  quantity  of  a  thing  which  con- 
sists in  number,  weight,  or  measure,  as  money,  sugar, 
or  wine.  In  the  former  case,  it  is  of  the  essence  of 
the  transaction  that  the  thing  lent  continue  to  belong 
to  the  lender;  otherwise  the  transaction  is  not  a  loan. 
In  the  latter  case,  the  thing  lent  may  (and  commonly 
does)  cease  to  belong  to  the  lender,  and  become  the 
property  of  the  borrower,  such  a  loan  commonly 
being  an  absolute  transfer  of  title  in  the  thing  lent 
from  the  lender  to  the  borrower.  The  reason  why 
such  a  transfer  of  title  takes  place  is  obvious.  The 
object  of  borrowing  is  to  have  the  use  of  the  thing 
borrowed ;  but  the  use  of  things  which  consist  in 
number,  weight,  or  measure  commonly  consumes 
them ;  and  this  use,  of  course,  the  borrower  cannot 
have  unless  he  owns  the  things  used.  When  such 
things  are  lent,  therefore,  it  is  presumed  to  be  the 
intention  of  both  parties,  in  the  absence  of  evidence 
to  the  contrary,  that  the  borrower  shall  acquire  the 


124  DEBT. 

title  to  them.  But  why  then  call  the  transaction  a 
loan?  The  answer  is,  that,  in  every  particular  except 
the  transfer  of  title,  it  is  a  loan ;  that  the  title  is 
transferred  for  the  purpose  of  making  the  loan  effec- 
tive as  such,  and  because  it  is  immaterial  to  the  lender 
whether  he  receives  back  the  identical  thing  lent,  or 
something  else  just  like  it.  Moreover,  the  difference 
between  a  loan  of  money,  for  example,  and  a  loan  of 
a  specific  article,  is  not  commonly  present  to  the 
minds  of  the  parties ;  the  lender  of  money  thinks  the 
money  lent  still  belongs  to  him,  and  that  the  borrower 
has  acquired  only  the  right  to  use  it  temporarily ;  he 
is  aware  that  the  borrower  is  entitled  to  transfer  to 
other  persons  the  identical  coins  lent,  and  that  he  has 
the  option  of  returning  to  him,  the  lender,  either  the 
identical  coins  borrowed,  or  others  like  them ;  but  he 
is  not  aware  that  these  rights  in  the  borrower  are 
inconsistent  with  his  retaining  the  title  to  the  money 
lent.  In  other  words,  he  supposes  (and,  in  every 
view  except  the  strict  legal  view,  he  is  right  in  sup- 
posing) that  he  may  own  a  given  sum  of  money 
without  owning  any  specified  coins  ;  and  that  the 
only  substantial  difference  between  money  in  his  own 
coffer  and  money  due  to  him  is,  that  in  the  former 
case  he  has  the  possession,  while  in  the  latter  case 
he  has  not. 

100.  A  debt,  therefore,  according  to  the  popular 
conception  of  the  term,  is  a  sum  of  money  belonging 
to  one  person  (the  creditor),  but  in  the  possession  of 
another  (the  debtor).  There  is  also  much  reason  to 
believe  that  this  popular  conception  of  a  debt  was 
adopted  by  the  early  English  law,  at  least  for  certain 
purposes.       Thus,    the    action    of    debt    (which    was 


DEBT.  125 

established  for  the  sole  and  exclusive  purpose  of 
recovering  debts  of  every  description)  was  in  the 
nature  of  an  action  in  rem,  and  did  not  differ  in 
substance  from  the  action  of  detinue ;  the  chief  dif- 
ference between  them  being  that  the  latter  was  for 
the  recovery  of  specified  things  belonging  to  the 
plaintiff,  the  former,  of  things  not  specified.  This 
would  tend  to  the  conclusion  that  the  legal  mode  of 
creating  a  debt  is  not  by  contract,  but  by  grant,  ^.  e. 
by  the  transfer  of  a  sum  of  money  from  the  debtor  to 
the  creditor  without  delivering  possession ;  and  it  is  a 
confirmation  of  this  view  that  a  debt  clearly  may  be 
so  created.  Thus,  an  annuity,  which  is  simply  a  debt 
payable  in  equal  annual  instalments,  has  always  been 
regularly  created  by  grant ;  and  there  can  be  no  doubt 
that  an  ordinary  debt  may  be  created  by  a  mere  deed 
of  grant.  But  it  would  be  too  much  to  undertake  to 
account  in  this  way  for  all  debts  which  may  be 
created  by  the  acts  of  parties ;  for,  in  the  first  place, 
a  mere  covenant  (i.  e.  a  promise  under  seal)  to  pay  a 
certain  sum  of  money  will  clearly  create  a  debt ; 
secondly,  it  is  clear  enough  that  a  debt  cannot  be 
created  by  grant  without  a  deed;  thirdly,  it  would 
seem  to  be  straining  the  facts  to  say  that  every  loan 
of  money  is,  in  its  legal  operation,  an  exchange  of  the 
sum  lent  for  a  like  sum  to  be  paid  in  future  by  tlie 
borrower,  and  that  every  executed  sale  upon  credit  is 
a  like  exchange  of  the  property  sold  for  the  purchase- 
money  to  be  paid  at  a  future  day  ;  fourthly,  there  has 
never  been  supposed  to  be  any  grant  or  conveyance 
on  the  part  of  a  boiTOwer  in  case  of  a  loan,  or  on  the 
part  of  a  buyer  in  case  of  a  sale,  but,  on  the  contrary, 
it  has  always  been  supposed  that  the  debt  in   both 


126  DEBT. 

cases  was  created  (in  the  only  other  possible  mode, 
namely)  by  contract.  Yet  this  latter  view  is  not 
without  its  difficulties.  That  a  debt  cannot  be  created 
by  a  mere  binding  promise  on  the  part  of  a  debtor, 
without  the  receipt  by  him  from  the  creditor  of  a 
supposed  equivalent  for  the  debt,  is  clear :  First,  until 
the  introduction  of  the  action  of  assumpsit  (which  was 
not  earlier  than  the  latter  half  of  the  fifteenth  century) 
such  promises  were  not  enforceable  by  law  at  all. 
Secondly,  an  action  of  debt  will  never  lie  on  a  bilateral 
contract  not  under  seal ;  but  if  the  promise  on  one 
side  be  merely  for  the  payment  of  money,  an  action 
of  debt  will  generally  lie  to  recover  the  money  as  soon 
as  the  promise  on  the  other  side  is  performed.  For 
example,  a  contract  of  sale  will  never  support  an 
action  of  debt  so  long  as  it  remains  executory  on  both 
sides,^  but  as  soon  as  the  title  to  the  property  sold 
passes  to  the  buyer,  debt  will  lie  for  the  price.  It  is 
clear,  therefore,  that  it  is  the  transfer  of  the  property 
for  a  certain  price,  and  not  the  previous  executory 
contract,  that  creates  the  debt.  The  transfer  may 
also  take  place  without  any  previous  executory  con- 
tract, and  yet  the  debt  arises  just  the  same.  Thirdly, 
it  is  familiar  law  that  an  action  of  debt  will  not  lie 
on  a  unilateral  promise  to  pay  money  unless  the 
promisor  has  received  an  equivalent.  For  example, 
when  A  sells  goods  to  B  upon  credit,  and  in  con- 
sideration of  the  sale  C  guarantees  the  payment  of 
the  price,  an  action  of  debt  will  not   lie  against  C. 

^  It  may  be  said  that  this  is  because  the  price  is  not  payable  until 
the  title  to  the  property  passes ;  but  tlie  price  may  be  made  payable 
before  the  title  passes,  /.  e.  it  may  be  made  payable  in  advance,  and 
yet  an  action  of  debt  will  not  lie  to  recover  it. 


DEBT.  127 

The  result,  therefore,  is,  that  a  debt  cannot  be  created 
by  contract  unless  either  the  contract  is  under  seal  or 
the  debtor  has  received  an  equivalent,  commonly 
termed  a  quid  pro  quo.  But  what  kind  of  contract  is 
that  in  which  the  obligation  arises  not  from  a  promise, 
but  from  the  receipt  of  an  equivalent  for  the  obliga- 
tion by  the  obligor  from  the  obligee  ?  Upon  examining 
the  two  classes  into  which  contracts  are  commonly 
divided,  viz.  those  under  seal  and  those  not  under 
seal,  it  will  be  seen  that  the  obligation  arises  in  the 
former  from  the  performance  of  certain  acts  prescribed 
by  law,  viz.  reducing  the  promise  to  writing,  sealing 
the  writing,  and  delivering  it ;  while  in  the  latter  it 
generally  arises  from  a  promise  made  and  accepted, 
i.  e.  from  an  exercise  of  will  on  the  part  of  the 
promisor  and  the  promisee,  the  law  imposing  only 
the  condition  that  there  shall  be  some  consideration 
for  the  promise.  According  to  the  nomenclature 
employed  by  writers  on  the  civil  law,  the  former  are 
formal  contracts,  while  the  latter  are  consensual  con- 
tracts. This  distinction  existed  from  the  earliest 
times  among  the  Romans,  who  allowed  certain  specified 
contracts  (only  four  in  all)  to  be  made  by  mere  con- 
sent, but  for  all  others  required  some  one  of  three 
prescribed  forms.  One  of  these  forms  consisted  in 
the  delivery  of  some  movable  thing  by  the  promisee 
to  the  promisor.  When  this  was  done  with  the 
mutual  understanding  that  either  the  specific  thing 
delivered  or  (in  case  of  things  which  consisted  in 
number,  weight,  or  measure)  something  else  like  it 
should  be  returned,  an  obligation  to  make  such  return 
arose  immediately  upon  the  delivery.  As  the  contract 
arose  from  the  delivery  of  a  thing  (rg),  it  was  called 


128  DEBT. 

a  real  contract.  There  were  four  of  these  contracts 
from  the  earliest  times ;  namely,  a  loan  of  money  or 
other  thing  consisting  of  number,  weight,  or  measure 
(rnutuum)^  a  gratuitous  loan  of  specific  things  (^com- 
modatum)^  a  delivery  of  specific  things  for  safe  keep- 
ing (^depositiim^,  and  a  pawn  or  pledge  (^pignus).  At 
a  later  period  this  species  of  contracts  was  so  extended 
as  to  embrace  any  transaction  which  consisted  in 
giving  or  doing  on  one  side,  with  the  mutual  under- 
standing that  some  specified  thing  should  be  given  or 
done  on  the  other  side  in  exchange. 

101.  There  can  be  little  doubt  that  the  Roman  law 
in  regard  to  real  contracts  was  adopted  by  the  English 
law  at  a  very  early  period,  at  least  so  far  as  the  latter 
law  provided  a  remedy  for  enforcing  such  contracts ; 
and  whenever  the  giving  or  doing  on  one  side  created 
an  obligation  on  the  other  side  to  pay  a  definite  sum 
of  money,  the  action  of  debt  not  only  furnished  an 
appropriate  means  for  enforcing  the  obligation,  but  it 
was  for  that  express  purpose  that  the  action  was 
established.  The  testimony  of  the  early  writers  is 
very  explicit  upon  this  subject.  Thus,  Glanville^ 
enumerates  five  contracts,  all  of  Roman  origin,  as 
creating  debts.  Three  of  these  were  the  real  contracts 
of  mutuum,  commodatum,  and  depositum ;  the  other 
two  were  sale  {yenditio)  and  letting  for  hire  Qocatio)^ 
meaning  a  sale  or  letting  which  had  been  executed  by 
a  transfer  of  the  thing  sold  or  let.  These  latter  were 
not  regarded  as  real  contracts  among  the  Romans,  for 
the  reason  that  they  were  binding  as  consensual  con- 
tracts, though  wholly  executory ;  but,  as  they  were 
not  binding  by  the  English  law  while  executory,  they 
1  Lib.  10 


DEBT.  129 

were  very  properly  classed  by  Glanville  among  real 
contracts  when  executed  by  a  transfer  of  the  prop- 
erty. Bracton,'  who  in  this  respect  is  followed  by 
Fleta,'^  and  in  substance  by  Britton,*^  follows  the 
Institutes  of  Justinian  almost  literally  upon  the  sub- 
ject of  real  contracts  ;  and  though  the  closeness  of  his 
cojnnng  may  excite  some  suspicion  as  to  the  trust- 
worthiness of  his  testimony,  yet  what  he  says  upon 
real  contracts  is  quoted  as  authority  by  Lord  Holt,  in 
Coggs  V.  Bernard.*  It  may  be  added  that  Britton  and 
Fleta,  as  well  as  Glanville,  treat  of  real  contracts 
under  the  titles  "  debt  "  and  "  action  of  debt." 

102.  Upon  the  whole,  it  is  submitted  that  the  follow- 
ing propositions  have  been  satisfactorily  established : 
First,  that  debt  by  simple  contract  is,  in  our  law,  a 
phenomenon  to  be  accounted  for.  Secondly,  that, 
upon  the  supposition  that  it  came  from  the  real  con- 
tracts of  the  Roman  law,  it  is  accounted  for  perfectly. 
Thirdly,  that  there  is  no  other  known  mode  of 
accounting  for  it.  Fourthly,  that,  upon  the  same 
supposition,  all  the  contracts  known  to  the  early 
English  law,  except  contracts  under  seal,  are  accounted 
for.  Fifthly,  that  the  Roman  law  as  to  real  contracts 
was  in  fact  adopted  by  the  early  English  law,  though 
w^ith  such  modifications  as  were  necessary  to  make  it 
harmonize  with  the  latter  system.  Sixthly,  that, 
whether  regard  be  had  to  the  origin  or  to  the  nature 
of  debt  on  simple  contract,  it  is  clear  that  the  trans- 
action by  which  it  is  created  is  a  formal,  not  a 
consensual  contract. 

103.  It  should,  perhaps,  be  added,  that  in  strictness 

1  Lio.  3,  tr.  1,  c.  2.  2  Lib.  2,  c.  56. 

8  Liv.  1,  c.  29,  §  3.  *  2  Ld.  Raym.  909,  91 1. 


130  DEBT. 

there  are  no  consensual  contracts  in  our  law,  as  a 
promise  which  has  nothing  else  to  make  it  binding 
must  have  a  consideration.  Still,  those  contracts 
which  can  be  enforced  only  by  an  action  of  assumpsit, 
though  they  are  not  purely  consensual,  are  substan- 
tially so  ;  and  they  may,  therefore,  properly  be  termed 
consensual  by  way  of  distinguishing  them  from  other 
contracts. 


DEMAND.  131 


DEMAND. 


104.  When  a  debt  is  created  without  any  specifica* 
tion  of  time  for  its  payment,  it  is  payable  immedi- 
ately, and,  in  the  language  of  pleading,  a  debt  payable 
immediately  is  said  to  be  payable  on  request.  When, 
therefore,  it  is  alleged  in  a  declaration  upon  a  bond 
that  the  defendant  acknowledged  himself  to  be  held 
and  firmly  bound  to  the  plaintiff  in  such  a  sum,  to  be 
paid  to  the  plaintiff  by  the  defendant  when  the  latter 
should  be  thereunto  afterwards  requested,  it  is  not 
meant  that  the  payment  of  the  debt  is  subject  to  the 
condition  of  being  first  demanded,  but  merely  that  it 
is  payable  whenever  the  plaintiff  chooses  to  requii-e 
its  payment.  It  is  for  this  reason  that  a  declaration 
in  indebitatus  assumpsit  alleges  a  promise  by  the 
defendant  to  pay  the  debt  upon  request ;  for  such  a 
declaration  must  state  facts  showing  a  debt  payable 
presently,  and  then  the  promise,  being  implied  by 
law,  must  be  precisely  co-extensive  with  the  debt. 
Hence  the  words  "upon  request"  do  not  make  the 
promise  conditional.  The  same  interpretation  was 
also  applied  to  a  declaration  on  an  express  promise  to 
pay  a  debt  upon  request ;  for  it  was  truly  said  that 
the   promise  did   not   create   the   debt,  but  the   debt 


132  DEMAND. 

existed  independently  of  the  promise ;  and  therefore, 
if  the  debt  was  unconditional,  a  promise  to  pay  it  in 
the  precise  terms  which  the  law  would  imply  could 
not  be  conditional.^  But  it  was  held  that  this  analogy 
could  not  be  extended  to  a  promise  which  created  a 
new  cause  of  action,  and  that  such  a  promise,  though 
simply  to  pay  money,  must  be  interpreted  according 
to  the  natural  import  of  its  terms.  Hence,  the  dis- 
tinction became  established  that  a  declaration  on  a 
promise  to  pay  a  debt  upon  request  need  not  aver  any 
request,  2  while  a  declaration  on  a  promise  to  do  some 
specific  act  upon  request,  or  even  a  promise  to  pay  on 
request  a  sum  of  money  not  constituting  a  debt,  must 
aver  an  actual  request  before  bringing  the  action.^ 
This  distinction,  however,  relates  entirely  to  pleading, 
and  the  lesson  to  be  learned  from  the  cases  which 
establish  it  is,  that,  in  the  latter  class  of  cases,  the 
promise  should  never  be  alleged  to  be  upon  request, 

1  See  Rumball  v.  Ball,  10  Mod.  38,  Cas.  on  Contr.  956. 

2  Estrigge  and  Owles'  Case,  3  Leon.  200,  Cas.  on  Contr.  950;  Case 
of  an  Hostler,  Yelv.  66,  Cas.  on  Contr.  951 ;  Wallis  v.  Scott,  1  Str. 
88,  Cas.  on  Contr.  956. 

8  Banks  and  Thwaits'  Case,  3  Leon.  73,  Cas.  on  Contr.  949 ;  Sel- 
man  v.  King,  Cro  Jac.  183,  Cas.  on  Contr.  951 ;  Harrison  v.  Mitford, 
2  Bulst.  229,  Cas.  on  Contr.  952  ;  Hill  v.  Wade,  Cro.  Jac.  523,  Cas.  on 
Contr.  952 ;  Lowe  and  Kirby,  W.  Jones,  56,  Cas.  on  Contr.  953  ;  Pecke 
and  Mitiiwolde,  W.  Jones,  85,  Cas.  on  Contr.  953;  Alcock  v.  Blofield, 
Latch,  209,  Cas.  on  Contr.  954  ;  Birks  v.  Trippet,  1  Wms.  Saund.  32. 
Cas.  on  Contr.  955.  In  the  cases  of  Estrigge  and  Owles,  Seiman  v 
King,  and  Wallis  v.  Scott,  supra,  the  courts,  while  professing  to  pro- 
ceed upon  the  foregoing  distinction,  seem  to  liave  nii.-iapplied  it.  In 
Estrigge  and  Owles'  Case  the  defendant  clearly  was  not  a  debtor, 
while  in  Seiman  v.  King  it  seems  clear  tliat  the  defendant  was  a  debtor. 
In  Wallis  v.  Scott  it  did  not  appear  that  the  goods  liad  ever  been 
accepted  or  received  by  the  defendant,  and  if  they  had  not,  the  title 
to  them  had  not  vested  in  him,  and  he  was  not  a  debtor  for  the  price 
of  them. 


DEMAND.  133 

except  when  it  is  actually  conditional  upon  making  a 
demand ;  and  a  promise  never  is  so  conditional  except 
when  it  is  made  so  either  expressly  or  by  a  clear 
implication.^  In  other  words,  the  condition  of  making 
a  demand  is  governed  by  the  same  principles  as  other 
express  conditions,  and  any  words  or  circumstances 
which  will  create  such  a  condition  in  any  other 
obligation  will  also  create  it  in  an  obligation  to  pay 
a  debt. 

1  See  Carter  v.  Ring,  3  Campb.  459,  Cas.  on  Contr.  967 ;  Gibbs  v. 
Southam,  5  B.  &  Ad.  911,  Cas.  on  Contr.  958. 


134  DEPENDENT  AND  INDEPENDENT 


DEPENDENT  AND  INDEPENDENT  COV- 
ENANTS  AND   PROMISES. 


105.  When  the  performance  of  one  of  two  mutual 
covenants  or  promises  is  conditional  upon  the  per- 
formance of  the  other,  the  former  is  said  to  be  de- 
pendent upon  the  latter.  When  the  performance  of 
each  is  conditional  upon  the  performance  of  the  other, 
the  two  covenants  or  promises  are  said  to  be  mutually 
dependent.  The  term  dependency,  therefore,  may  be 
said  to  designate  a  class  of  conditions  peculiar  to 
bilateral  contracts.  Every  condition  in  a  covenant 
or  promise  must  be  founded  upon  the  intention  of  the 
covenantor  or  promisor,  and  generally  this  intention 
must  be  an  actual  one,  i.  e.  it  must  be  proved  to  exist 
in  each  case.  Conditions  of  the  class  just  referred  to, 
however,  are  frequently  founded  upon  an  intention 
which  the  law  imputes  to  the  covenantor  or  promisor 
without  any  evidence  of  its  actual  existence  in  the 
particular  case ;  and  in  that  respect  these  conditions 
differ  from  all  others.  Conditions  which  are  founded 
upon  an  actual  intention  may  be  termed  express  con- 
ditions ;  those  wliich  are  founded  upon  an  imputed 
intention  may  be  termed  implied  conditions.  De- 
pendency, therefore,  is  either  express  or  implied,  and 


COVENANTS   AND   PROMISES.  135 

implied  dependency  includes  all  implied  conditions. 
Those  conditions  which  constitute  express  dependency 
do  not  differ  materially  from  other  express  conditions, 
and  therefore  do  not  require  separate  treatment. 
Implied  dependency,  on  the  other  hand,  is  governed 
by  principles  peculiar  to  itself,  and  it  constitutes  by 
far  the  most  important  and  the  most  difficult  branch 
of  conditions.  Implied  dependency  alone,  therefore, 
will  constitute  the  subject  of  the  present  title. 

106.  When  it  is  said  that  a  covenant  or  promise 
may  be  dependent  by  implication,  the  meaning  is 
that  the  court  may  add  a  condition  to  a  covenant  or 
promise  which  is  absolute  in  terms,  and  the  language 
of  which  contains  no  evidence  that  it  was  intended  to 
be  conditional ;  and  yet  the  court  has  no  power  either 
to  make  or  to  alter  a  covenant  or  promise.  The 
explanation  of  this  apparent  contradiction  is,  that  the 
court  finds  in  the  fact  that  the  covenant  or  promise  is 
a  part  of  a  bilateral  contract  a  basis  upon  which  to 
raise  a  legal  (i.  e.  an  artificial)  presumption  that  the 
covenant  or  promise  was  intended  to  be  conditional. 
A  covenant  or  promise  generally  has  for  its  object  the 
exchange  of  the  thing  covenanted  or  promised  to  be 
given  or  done  for  something  to  be  given  or  done  by 
the  covenantee  or  promisee,  the  latter  being  payment 
for  the  former.  When  the  contract  is  unilateral,  the 
thing  covenanted  or  promised  to  be  given  or  done  is 
paid  for  when  the  contract  is  made,  and  hence  pay- 
ment is  not  made  under  or  pursuant  to  the  contract ; 
but  when  the  contract  is  bilateral,  payment  is  not 
made  until  after  the  making  of  the  contract,  and 
hence  it  must  be  made  under  and  pursuant  to  the 
contract.     In  the  latter  case,  therefore,  the  questiou 


136       DEPENDENT  AND  INDEPENDENT 

is  always  liable  to  arise,  whether  performance  of  tlio 
covenant  or  promise  can  be  enforced  before  it  is  paid 
for.  If  it  can  be  enforced  according  to  its  terms,  this 
question  must  be  answered  in  the  affirmative,  for, 
ex  concessis,  the  covenant  or  promise  is  absolute  in 
terms.  Yet  the  consequence  of  so  holding  would  be 
that  the  covenantor  or  promisor  would  have  to  per- 
form on  his  part  without  any  certainty  that  he  would 
ever  receive  the  equivalent  agreed  upon.  He  would 
not  merely  have  to  take  the  risk  of  the  pecuniary 
responsibility  of  the  covenantee  or  promisee  ;  for  even 
if  the  latter  were  responsible,  he  might  refuse  to  per- 
form, and  the  only  legal  remedy  of  the  former  woukl 
be  an  action  for  damages.  Can  it  be  supj)osed  that 
he  intended  to  place  himself  at  such  a  disadvantage? 
Not  unless  the  contract  furnishes  positive  evidence 
that  he  did  so  intend,  and  the  mere  fact  that  the 
covenant  or  promise  is  in  terms  unconditional,  being 
mere  negative  evidence,  is  insufficient.  On  the  con- 
trary, the  law  will  presume,  in  the  absence  of  positive 
evidence  to  the  contrary,  that  he  intended  not  to 
perform  unless  he  received  the  payment  agreed  upon ; 
and  for  the  purpose  of  carrying  out  this  intention,  the 
law  will  make  the  performance  of  the  covenant  or 
promise  conditional  upon  performance  by  the  cov- 
enantee or  promisee.  We  thus  arrive  at  the  principle 
(and  it  is  the  only  principle)  upon  which  the  per- 
formance of  one  of  two  mutual  covenants  or  promises 
may  be  made  dependent  by  implication  upon  the 
performance  of  the  other,  namely,  that  the  latter  is 
the  equivalent  or  payment  for  the  former.  It  is 
necessary   to   inquire,   therefore,   in    what    classes    of 


COVENANTS  AND  PROMISES.  137 

contracts  this  principle  is  found ;  especially,  whether 
it  is  found  in  all  bilateral  contracts. 

107.  In  every  purely  bilateral  contract  not  under 
seal  the  mutual  promises  are  necessarily,  in  legal  con- 
templation, the  full  equivalent  of  each  other ;  for 
otherwise  the  promise  on  one  side  would  be  in  part 
a  mere  gift,  and  therefore  would  be  invalid  for  want 
of  consideration.  In  bilateral  contracts  under  seal 
there  is  not  the  same  legal  necessity  that  the  mutual 
covenants  should  be  the  full  equivalent  of  each  other, 
yet  a  case  will  rarely  occur  in  which  they  must 
not  be  so  regarded  in  fact.  For  all  practical  purposes, 
therefore,  it  may  be  said  that  mutual  covenants  and 
promises  are  always,  in  legal  contemplation,  the  full 
equivalent  of  each  other,  and  are  given  and  received 
in  payment  for  each  other.  And  what  is  thus  true 
of  mutual  covenants  and  promises  is  also  necessarily 
true  of  the  performance  of  them,  provided  the  per- 
formance on  each  side  is  equally  certain ;  but  if  the 
performance  on  one  side  is  conditional,  while  on  the 
other  side  it  is  unconditional,  the  inference  is  that 
the  conditional  performance  makes  up  in  quantity 
what  it  lacks  in  certainty ;  and  therefore,  though  the 
covenants  or  promises  are  equal,  the  performances  are 
unequal.  In  other  words,  whenever  the  performances 
of  mutual  covenants  or  promises  are  unequal  in 
certainty,  they  will  also  be  unequal  in  amount,  and 
hence  there  will  be  no  foundation  for  making  one 
dependent  upon  the  other  by  implication.  This  seems 
to  have  been  the  true  ground  for  the  decision  in 
Martindale  v.   Fisher.^      This  principle  is   especially 

1  1  Wils.  88,  Cas.  on  Contr.  032. 


138       DEPENDENT  AND  INDEPENDENT 

applicable  to  all  that  class  of  contracts  known  to 
writers  on  the  civil  law  as  aleatory  or  hazardous 
contracts,  e.  g.  contracts  of  insurance,  of  indemnity, 
of  suretyship  or  guaranty,  of  warranty  in  sales  of 
personal  property,  and  covenants  for  title  in  sales  of 
real  estate.  In  most  cases  all  of  these  contracts  are 
unilateral,  and  then  of  course  no  question  of  depend- 
ency can  arise ;  but  even  when  they  are  bilateral,  it 
seems  that  the  covenants  or  promises  are  never 
dependent  by  implication.  The  consequence  will 
generally  be  the  same  if  the  performance  on  each  side 
is  conditional,  for  the  court  can  seldom  say  that  each 
condition  creates  the  same  degree  of  uncertainty. 
Therefore  mutual  promises  of  guaranty  are  not  de- 
pendent by  implication,  unless  at  least  the  debts 
guaranteed  are  of  the  same  amount.^ 

108.  With  the  exception  stated  in  the  preceding 
paragraph,  it  seems  that  the  performances  of  mutual 
covenants  or  promises  must  always  be  deemed  equal 
to  each  other,  and  therefore  each  must  be  deemed 
full  payment  for  the  other.  This  is  not  always 
obvious,  however,  at  first  sight.  Thus,  a  contract 
may  be  made  between  two  persons,  not  for  the  pur- 
pose of  exchanging  one  thing  for  another,  but  for  the 
promotion  of  an  object  in  which  they  have  a  common 
interest,  e.  g.  where  two  adjoining  owners  of  land 
enter  into  a  mutual  agreement  for  making  and  main- 
taining a  partition  fence,  each  promising  to  make  and 
maintain  a  fence  on  one  half  of  the  dividing  line.  In 
such  a  case  it  may  be  objected  that  each  is  as  much 
interested  in  what  he  is  to  do  himself  as  he  is  in  what 

>  Christie  v.  Borelly,  29  L.  J.  C.  P.  153,  Cas.  on  Contr  688. 


COVENANTS  AND  PROMISES.  139 

is  to  be  done  by  the  other ;  that  each  performs  for  his 
own  benefit  as  well  as  by  way  of  recompense  for  the 
other's  performance ;  and  therefore  it  cannot  be  said 
that  performance  on  one  side  is  simply  payment  for 
performance  on  the  other  side.  But  the  answer  to 
this  is,  that  in  dealing  with  the  contract,  each  one's 
interest  in  his  own  performance  is  to  be  excluded 
from  consideration,  his  interest  in  the  performance  of 
the  other  being  the  only  thing  material ;  and,  looking 
at  the  contract  in  this  light,  it  will  be  seen  that  each 
has  the  same  interest  in  the  other's  performance  that 
the  other  has  in  his  performance.  So  far  as  the 
contract  is  concerned,  therefore,  the  performance  of 
each  is  simply  payment  for  the  other's  performance. 
Another  instance  of  such  a  contract  is  where  landlord 
and  tenant  mutually  covenant,  the  latter  to  keep  the 
demised  premises  in  repair  during  the  term,  and  the 
former  to  find  all  necessary  timber  for  making 
the  repairs.^  Another  instance  will  be  found  in 
Ware  v.  Chappel;^  for  it  must  be  assumed  that  the 
plaintiff  and  defendant  had  a  common  interest  in 
having  the  five  hundred  soldiers  raised  and  trans- 
ported to  Galicia,  and  that  the  contract  was  made  for 
the  accomplishment  of  that  object. 

109.  If  a  covenant  or  promise  be  given  partly  in 
consideration  of  something  given  or  done  by  the 
covenantee  or  promisee,  and  partly  in  consideration 
of  something  covenanted  or  promised  to  be  given  or 
done  by  the  latter,  the  contract  is  bilateral  in  part 
and  unilateral  in  part.  In  such  cases  what  remains 
to  be  performed  on  one  side  is  of  course  only  part- 

1  See  Thomas  v.  Cadwallader,  Willes,  496,  Cas.  on  Contr.  458,  461 

2  Style,  186,  Cas.  on  Contr.  623. 


140  DEPENDENT   AND   INDEPENDENT 

payment  for  the  entire  performance  on  the  other  side, 
and  hence  the  foundation  fails  on  which  the  implica- 
tion of  dependency  rests.  It  is  not  reasonable  to 
suppose  that  a  party  who  receives  a  part  of  the 
consideration  of  his  promise  when  he  makes  it  is  to 
be  discharged  from  his  promise  because  he  does  not 
receive  the  remainder  of  tlie  consideration  (perhaps 
through  the  misfortune  of  the  promisee),  thus  retain- 
ing what  he  has  received  without  paying  for  it.  Nor 
can  the  party  who  has  performed  in  part  refuse  to 
complete  his  performance  because  the  other  has  not 
fully  performed,  for  that  would  be  to  make  his  per- 
formance conditional  upon  his  receiving  more  than  its 
equivalent.  In  other  words,  a  refusal  to  perform  by 
one  party  would  involve  his  refusing  to  do  what  he 
has  already  been  paid  for  doing,  while  a  refusal  by 
the  other  would  be  a  refusal  to  perform  a  promise 
unless  he  was  paid  for  something  else.  Therefore 
each  must  perform  his  own  promise,  and  indemnify 
himself  for  any  breach  of  the  counter-promise  by  an 
action  for  damages.  In  short,  the  two  promises  will 
be  independent  of  each  other.  An  ordinary  lease  is 
a  good  example  of  this  kind  of  contract ;  for  the 
principal  thing  to  be  done  by  the  lessor  is  to  grant 
a  term  for  years  to  the  lessee,  and,  as  this  is  done 
when  the  lease  is  made,  the  mutual  covenants  which 
a  lease  commonly  contains  are  not  dependent  on  each 
other  by  implication.  A  deed  of  apprenticeship  is 
another  instance  of  the  same  kind  of  contract ;  for  a 
premium  is  always  payable  to  the  master  in  advance. 
He  cannot,  therefore,  refuse  to  perform  his  covenants 
on  the  ground  that  those  on  the  part  of  the  apprentice 
have  been  broken.     It  seems  also   that,   apart  from 


COVENANTS   AND   PROMISES.  141 

the  payment  of  a  premium  in  advance,  a  deed  of 
apprenticeship  is  not  a  mere  executory  contract,  but 
that  it  primarily  creates  a  status  in  the  apprentice, 
and  a  legal  relation  between  the  master  and  the 
apprentice  which  neither  of  them  has  theoretically 
the  power  to  terminate  before  its  regular  expiration. 
The  cases  of  Winstone  v.  Linn,i  and  Phillips  v.  Clift,^ 
were  decided  in  accordance  with  these  views.  Nor 
was  their  authority  intended  to  be  impeached  by  the 
case  of  Raymond  v.  Minton,^  though  it  is  difficult  to 
reconcile  the  latter  with  established  principles.  The 
theory  of  the  defendant's  plea,  and  of  the  decision 
sustaining  it,  seems  to  have  been  that  the  apprentice 
prevented  the  defendant's  performance  of  his  covenant, 
and  that  that  constituted  a  good  affirmative  defence. 
But  it  is  to  be  borne  in  mind  that  the  defendant's 
covenant  was  not  with  the  apprentice,  and  that  the 
action  was  not  brought  by  the  apprentice ;  and  it  is 
not  obvious  how  the  acts  of  a  third  person  could  be 
any  answer  to  an  admitted  breach  by  the  defendant 
of  a  covenant  made  by  him  with  the  plaintiff.  And 
admitting  such  a  defence  to  be  possible,  the  plea 
clearly  did  not  state  sufficient  facts  to  establish  it,  for 
it  did  not  show  that  the  defendant  even  attempted 
to  perform  the  duty  of  requiring  obedience  from  the 
apprentice.  The  only  way  of  supporting  the  decision 
seems  to  be  by  treating  the  plea  as  an  argumentative 
traverse  of  the  bi-each  alleged  in  the  declaration.  In 
that  view,  it  would  be  open  to  the  defendant  to  show 
that  he  had  made  every  effort  reasonably  within  liia 

1  1  B.  &  C.  460,  Cas.  on  Contr.  649. 

2  28  L.  J.  Exch.  153,  Cas.  on  Contr.  685. 
8  L.  R.  1  Exch.  244,  Cas.  on  Contr.  587. 


142  DEPENDENT   AND   INDEPENDENT 

power  to  teach  the  apprentice,  for  that  would  show  a 
perfoi'mance  of  his  covenant.  He  did  not  covenant 
absolutely  to  teach  the  apprentice  the  trade  in  ques- 
tion, but  only  to  do  so  to  the  best  of  his  ability. 

110.  Other  instances  of  contracts  partly  bilateral 
■will  be  found  in  Hunlocke  v.  Blacklowe,i  Judson  v. 
Bowden,2  Campbell  v.  Jones,^  and  Carpenter  v.  Cress- 
well.'*  In  Campbell  v.  Jones  the  part-performance 
seems  to  have  consisted  in  the  payment  of  the  first 
250Z.  by  the  defendant  to  the  plaintiff,  and  not  in  an 
assignment  of  an  interest  in  the  patent;  for  the  effect 
of  the  deed  seems  to  have  been  to  give  the  defendant 
no  more  than  a  license  to  use  the  patent.  In  Judson 
V.  Bowden  the  first  4001.  was  to  be  paid  concurrently 
with  the  execution  of  the  deed,  and  such  payment 
(assuming  it  to  have  been  made)  rendered  the  contract 
unilateral  in  part.  In  another  respect  also  the  con- 
tract was  partly  executed  the  moment  that  it  was 
made,  for  the  plaintiff  and  defendant  thereupon  became 
partners  by  relation  from  the  first  of  January  preceding 
the  execution  of  the  deed.  In  Havelock  v.  Geddes,^ 
though  a  part  of  the  freight  was  paid  concurrently 
with  the  execution  of  the  charter-party,  yet  it  was 
simply  a  payment  in  advance  for  the  first  two  months 
that  the  ship  was  to  be  employed,  and  therefore  it  did 
not  affect  the  remainder  of  the  contract. 

111.  The  same  consequence  will  follow  from  a  part- 
performance  on  both  sides  at  the  time  of  making  a 

1  2  Wms.  Saund.  156,  Cas.  on  Contr.  627. 

2  1  Exch.  162,  Cas.  on  Contr.  673. 
8  6  T.  R.  570,  Cas.  on  Contr.  839. 
*  4  Ring.  409,  Cas.  on  Contr.  870. 
6  10  East,  555,  Cas.  on  Contr.  857. 


COVENANTS   AND   PROMISES.  143 

contract  (namely,  that  there  will  be  no  dependency 
by  implication),  unless  it  appears  affirmatively  that 
the  part-performance  of  one  was  regarded  simply  as 
payment  for  the  part-performance  of  the  other ;  and 
that  will  seldom  happen.  Thus,  in  Boone  v.  Eyre,^ 
the  plaintiff  had  performed  in  part  by  actually  con- 
veying such  title  as  he  had  to  the  property,  and  the 
defendant  had  performed  in  part  by  paying  500L  ;  and 
as  there  was  no  ground  for  saying  that  the  500?.  and 
the  conveyance  were  intended  to  balance  each  other, 
it  followed  that  the  covenant  to  pay  the  remainder  of 
the  purchase-money  was  not  dependent  by  implication 
upon  the  covenants  for  title ;  and  of  course  the  con 
verse  was  equally  true. 

112.  It  should  be  observed,  however,  that  the  deed 
of  conveyance  in  Boone  v.  Eyre  contained  an  express 
covenant  for  the  payment  of  the  purchase-money,  and 
it  must  not  be  inferred  that  the  same  reasoning  will 
be  applicable  to  the  ordinary  case  of  an  executed  sale 
of  real  or  personal  property  on  credit,  with  covenants 
for  title,  a  warranty  of  quality,  or  any  other  covenant 
or  promise  on  the  part  of  the  seller ;  for,  though  the 
mutual  obligations  in  such  a  case  are  clearly  not  de- 
pendent by  implication,  the  reason  seems  to  be,  not 
that  they  constitute  a  contract  only  partly  bilateral, 
but  that  they  constitute  two  separate  contracts,  each 
of  which  is  wholly  unilateral.  A  bilateral  contract 
must  consist  either  of  mutual  covenants  or  of  mutual 
promises  ;  it  cannot  consist  of  a  covenant  on  one  side 
and  a  promise  on  the  other.  If  a  covenant  and  a 
promise  be  exchanged  for  each  other,  the  covenant 
will  be  actual  performance  in  respect  to  the  promise, 
1  1  H.  Bl.  273,  note,  Cas.  on  Coatr.  838. 


144       DEPENDENT  AND  INDEPENDENT 

and  both  will  be  unilateral.  A  deed  of  conveyance 
of  real  estate,  therefore,  in  its  ordinary  form,  contains 
no  bilateral  contract,  as  it  contains  no  covenant  on  the 
part  of  the  buyer ;  and,  if  it  contains  covenants  for 
title  on  the  part  of  the  seller,  they  are  necessarily  uni^ 
lateral.  If  the  purchase-money  is  not  paid  at  the  time 
of  the  conveyance,  it  becomes  a  debt,  but  the  debt  is 
created  by  the  conveyance  of  the  property,  and  not 
by  any  covenant  in  the  deed.  Again,  a  bilateral  con- 
tract must  consist  of  a  covenant  or  a  promise  on  each 
side,  and  not  of  a  debt  on  one  side  without  a  covenant 
or  promise.  A  covenant  may  indeed  create  a  debt  by 
its  own  force  (e.  g.  the  defendant's  covenant  in  Boone 
V.  Eyre),  and  in  such  a  case  the  existence  of  a  debt  is 
no  argument  against  a  bilateral  contract ;  but  a  debt 
by  simple  contract  can  be  created  only  by  the  actual 
receipt  of  a  quid  pro  quo,  and  therefore  such  a  debt 
necessarily  imports  that  the  creditor's  side  of  the  con- 
tract has  been  performed.  Hence  a  debt  by  simple 
contract  can  never  be  a  part  of  a  bilateral  contract, 
but  always  constitutes  by  itself  a  unilateral  contract 
or  obligation.  This  principle  applies  to  sales  of  both 
real  and  personal  property ;  for  in  both  cases  the 
transfer  of  the  property  alone  is  the  qidd  pro  quo 
which  makes  the  purchase-money  a  debt.  Unless  a 
credit  is  expressly  agreed  upon,  the  purchase-money 
becomes  due  the  moment  the  property  is  transferred, 
and  that,  too,  whether  there  are  collateral  covenants  or 
promises  on  the  part  of  the  seller  or  not.^  It  is  true 
that  a  sale  may  be  preceded  by  an  agreement  to  sell, 
which  is  a  bilateral  contract,  but  in  that  case  the  sale 

1  Per  Williams,  J.,  Behn  v.  Burness,  3  Best  &  S.  751,  Cas.  on 
Contr.  556,  564  ;  Street  v.  Blay,  2  B.  &  Ad.  456. 


COVENANTS   AND   PROMISES.  14^ 

is  a  performance  of  the  agreement  on  both  sides. 
That  it  is  so  when  the  price  is  paid  is  obvious  ;  but 
in  truth  it  is  not  material  whether  the  price  is  actually 
paid  or  not,  any  more  than  it  is  material  whether  pos- 
session of  the  propert}'  is  delivered  or  not ;  it  is  suffi- 
cient that  the  property  has  vested  in  the  buyer,  and  the 
price  of  it  in  the  seller.  If  an  action  is  afterwards 
brought  for  the  price,  the  cause  of  action  is  not  the 
executory  agi'eement,  but  the  sale.  An  action  of  debt 
is  brought  to  recover  the  price,  just  as  an  action  in 
rem  may  be  brought  to  recover  the  property.  This 
is  the  true  explanation  of  the  decision  in  Thorpe  v. 
Thorpe.^  The  executory  agreement  for  the  sale  of 
the  equity  of  redemption  had  been  performed,  and  the 
action  was  to  recover  the  price.  As  to  the  instrument 
pleaded  by  the  defendant,  so  far  from  its  extinguishing 
the  plaintiff 's  cause  of  action,  it  created  it.  A  sale, 
as  distinguished  from  an  agreement  to  sell,  is  not  a 
contract  at  all  (unless  the  term  "contract  "  be  used 
in  a  wider  sense  than  the  terras  "  covenant "  and 
"  promise  ")  ;  it  is  an  exchange  of  specific  property 
for  money.  In  Bach  v.  Owen  ^  the  plaintiff's  mistake 
consisted  in  his  supposing  that  the  transaction  upon 
which  he  sued  was  an  executory  agreement  instead  of 
an  actual  sale  or  exchange.  In  truth,  the  action 
should  have  been  trover  instead  of  assumpsit. 

113.  The  foregoing  considerations  show  that  the 
obligation  sued  on  in  Cad  well  v.  Blake '^  was  entirely 
unilateral,  and  hence  that  it  was  not  dependent  by 
implication  upon  any  promise  made  by  the  plaintiffs. 

1  12  Mod.  455,  Gas.  on  Contr.  446. 

2  6  T.  R.  409,  Cas.  on  Contr.  633. 
8  6  Gray,  402,  Cas.  on  Contr.  609. 

10 


146  DEPENDENT   AND   INDEPENDENT 

Not  only  was  the  transaction  there  an  executed  sale, 
but  it  was  stated  expressly  that  the  $4,000  was  the 
price  of  the  property  sold,  and  the  performance  of 
the  plaintiffs'  promises  was  to  be  paid  for  by  a  share 
of  the  defendants'  profits ;  and  though  the  $4,000  was 
not  payable  until  a  future  day,  yet  it  was  a  debt  and 
carried  interest  from  the  moment  of  the  sale.  So  far, 
therefore,  as  regarded  any  implied  dependency,  the 
question  before  the  court  was  the  same  as  if  the  trans- 
action had  been  simply  a  sale  of  the  machinery  and 
fixtures,  without  any  promise  on  the  part  of  the  plain- 
tiffs. Indeed,  the  plaintiffs'  promise  that  the  defend- 
ants should  have  the  right  to  manufacture  paper  by 
the  plaintiffs'  process,  and  that  the  plaintiffs  would 
teach  them  the  mode  of  manufacturing  paper  by  that 
process,  together  with  the  defendants'  promise  to  pay 
the  plaintiffs  a  certain  share  of  the  profits  of  the  busi 
ness,  formed  a  bilateral  contract  separate  and  distinct 
from  the  sale  of  the  machinery  and  fixtures. 

114.  In  White  v.  Beeton  ^  the  plaintiff's  claim  con- 
sisted of  several  elements,  each  of  which  must  be 
considered  separately.  First,  there  was  an  executed 
sale  of  the  plaintiff's  shares  in  the  Hull  Loan  and 
Discount  Society  for  the  price  of  480L  To  that  ex- 
tent, therefore,  the  defendant  became  indebted  to  the 
plaintiff,  and  his  obligation  was  unilateral.  Secondly, 
there  was  an  executory  sale  of  the  shares  standing  in 
the  name  of  Charles  Todd  (but  which  the  plaintiff 
claimed  to  own)  for  the  price  of  40^. ;  but  as  this  con- 
tract had  not  been  performed  on  the  part  of  the  plain- 
tiff, it  seems  clear  that  the  40Z.  had  not  become  due, 
and  that  the  plaintiff  was  not  entitled  to  recover  it. 
1  7  11.  &  N.  42.  Cas.  on  Contr.  884. 


COVENANTS   AND   PROMISES.  147 

Thirdly,  the  defendant  promised  to  pay  to  the  plaintiff 
a  debt  due  to  the  latter  from  the  society.  The  con- 
sideration for  this  seems  to  have  been  everything  done 
and  promised  to  be  done  by  the  plaintiff ;  and  if  so, 
the  defendant's  promise,  being  partly  unilateral,  was 
independent. 

115.  The  two  cases  last  referred  to  will  serve  to 
remind  the  reader  that  a  single  instrument  or  a  single 
transaction  may  comprise  several  distinct  contracts, 
and  that  it  is  not  sufficient  to  raise  a  presumption  of 
implied  dependency  between  two  covenants  or  prom- 
ises that  they  are  contained  in  the  same  instrument, 
or  that  each  is  a  part  of  the  same  transaction ;  it  must 
further  appear  that  each  is  a  part  of  the  same  contract. 
For  example,  if  an  agreement  be  made  between  A  and 
B  that  a  thing  belonging  to  A  shall  be  exchanged  for 
a  thing  belonging  to  B,  neither  A  nor  B  will  be  bound 
to  perform  unless  the  other  also  performs,  for  the  two 
promises  make  only  one  bilateral  contract ;  and  the 
effect  will  be  the  same  if  the  agreement  be  that  the 
thing  belonging  to  A  shall  be  sold  to  B  at  such  a 
price,  and  that  the  thing  belonging  to  B  shall  be  taken 
in  part-payment  at  such  a  price.  But  if  the  agreement 
be  that  the  thing  belonging  to  each  shall  be  sold  to 
the  other  at  such  a  price  payable  in  money,  there  will 
be  two  separate  contracts,  each  of  them  bilateral,  and 
tliey  will  be  independent  of  each  other  unless  they  be 
made  expressly  dependent.  The  terms  of  the  agree- 
ment show  that  each  pays  his  money  for  the  sake  cf 
getting  the  thing  purchased,  and  that  each  parts  with 
his  pi-operty  for  the  sake  of  getting  the  price ;  and 
there  is  no  room  for  the  supposition  that  each  sold  one 
article  for  the  sake  of  purchasing  the  other,  or  pur- 


148       DEPENDENT  AND  INDEPENDENT 

chased  one  for  the  sake  of  selling  the  other.  It  should 
be  added,  however,  that  such  an  agreement  as  the  one 
last  supposed  is  improbable,  there  being  a  strong  pre- 
sumption that  what  the  parties  intend  in  such  a  case 
is  an  exchange.  These  distinctions  are  well  brought 
out  by  the  case  of  Atkinson  v.  Smith. ^  A  contract  in 
writing  sometimes  contains  a  clause  providing  that 
any  dispute  arising  under  the  contract  shall  be  referred 
to  arbitrators ;  and  a  question  has  been  made  whetlier 
in  such  a  case  the  obligation  of  each  party  to  perform 
the  principal  contract  will  be  dependent  by  implication 
upon  the  other's  performing  the  agreement  to  refer.^ 
But  it  seems  that  an  agreement  to  refer  to  arbitrators, 
and  the  agreement  which  is  to  furnish  the  subject  of 
the  reference,  are  necessarily  separate  contracts,  the 
former  not  coming  into  operation  until  the  latter  is 
broken.  If  the  agreement  to  refer  were  contained  in 
a  separate  instrument,  or  if  it  were  not  made  until 
after  the  dispute  arose,  the  effect  of  it  would  be  the 
same.  Besides,  it  is  impossible  that  a  thing  to  be 
done  by  A  in  the  event  of  B's  not  performing  his 
promise  should  be  a  part  of  B's  compensation  for  per- 
forming his  promise.  When  two  parties  enter  into 
two  contracts  at  the  same  time,  and  by  the  same  in- 
strument, it  may  be  justly  inferred  that  neither  con- 
tract would  have  been  made  unless  both  had  been 
made,  but  that  does  not  make  them  one  contract.  It 
merely  amounts  to  saying  that  the  making  of  each 
contract  was  conditional  upon  the  making  of  the 
other ;  and  it  does  not  at  all  follow  from  that,  that 

1  14  M.  &  W.  695,  Cas.  on  Contr.  742. 

2  Koper  V.  London,  1  El.  &  El.  825,  Cas.  on  Contr.  646. 


COVENANTS   AND   PROMISES.  149 

the  performance  of  either  is  conditional  upon  the  per- 
formance of  the  other. 

116.  When  a  single  contract  contains  several  stip- 
ulations on  each  side,  they  are  all  to  be  considered  as 
one  for  the  purpose  of  deciding  the  general  question 
of  dependency ;  for  a  decision  of  that  question  in  the 
affirmative  affects  all  the  mutu;il  stipulations  equally, 
and  the  same  is  true  presumptively  of  a  decision  in 
the  negative.  If,  however,  it  clearly  appears  that  any 
two  mutual  stipulations  were  intended  to  be  payment 
for  each  other,  that  will  raise  a  presumption  of  depen- 
dency between  them,  though  there  be  none  as  to  the 
contract  generally ;  and,  therefore,  there  may  be  de- 
pendency between  two  mutual  covenants  or  promises 
in  a  contract  which  is  only  partly  bilateral.  Thus, 
mutual  covenants  in  a  lease  that  the  lessee  shall  keep 
the  premises  in  good  repair,  and  that  the  lessor  shall 
find  all  necessary  timber  for  making  repairs,^  or  that 
the  lessor  shall  keep  the  premises  in  good  repair  until 
a  certain  date,  and  the  lessee  during  the  remainder  of 
the  term,^  are.  it  seems,  dependent,  i.  e.  the  lessee's 
covenant  is  in  each  case  dependent  on  the  lessor's.  So 
in  Judson  v.  Bowden  ^  the  contract  was  only  partly 
bilateral,  and  yet  that  was  not  claimed  to  be  a  reason 
for  holding  that  the  particular  covenant  sued  on  was 
not  dependent. 

117.  As  one  instrument  may  contain  two  or  more 
separate  contracts,  so  each  of  two  mutual  covenants 

1  See  Thomas  v.  Cadwallader,  Willes,496,  Cas.  on  Contr.  458,  461  ; 
Holder  v.  Taylor,  1  Rol.  Abr.  518,  Cas   on  Contr.  620. 

2  See  Bragg  v.  Nightingale,  1  Rol.  Abr.  416,  pi.  15,  Cas.  on  Contr 
623. 

8  1  Exch.  162,  Cas.  on  Contr.  673. 


J.jO     dependent  and  independent 

or  promises  may  be  contained  in  a  separate  instrument, 
each  instrument  being  complete  in  itself  and  neither 
making  any  reference  to  the  other ;  and  the  question 
will  then  arise  whether  each  covenant  or  promise 
forms  a  separate  unilateral  contract.  In  the  case  of 
mutual  covenants  there  is  no  doubt  that  this  question 
must  be  answered  in  the  affirmative.^  And  the  same 
may  be  said  of  two  promises,  each  or  either  of  which 
is  contained  in  an  instrument  in  the  nature  of  a 
specialty,  e.  g.  a  promissory  note.  That  two  promissory 
notes  given  in  exchange  for  each  other  make  two  sep- 
arate contracts,  there  is  no  doubt ;  and  if  this  is  so, 
it  follows  that  one  promissory  note  given  in  exchange 
for  an  ordinary  promise  is  a  separate  contract;  and  if 
the  note  is  a  separate  contract,  the  promise  for  which 
it  is  given  is  so  also.^  It  follows,  therefore,  that  the 
decision  in  Hunt  v.  Livermore,^  where  a  promissory 
note,  absolute  on  its  face,  was  held  to  be  dependent 
by  implication  upon  the  payee's  performing  the  con- 
dition of  a  bond  given  in  exchange  for  the  note,  must 
be  deemed  erroneous.  Whether  the  court  intended 
to  hold  that  the  bond  and  the  note  actually  formed 
but  one  contract,  is  not  certain  ;  but  that  is  the  only 
theory  upon  which  the  decision  can  be  sustained.  It 
is  true  that  the  bond  and  the  note  were  parts  of  one 
transaction,  and  therefore  the  court  was  entitled  to 
look  at  both  instruments  for  the  purpose  of  construing 
or  interpreting  anything  that  was  doubtful  in  either  ; 
but  there  was  nothing  doubtful  or  ambiguous  in  the 

1  See  Lock  V.  Wright,  1  Str.    569,  Cas.  on  Contr.  456. 

2  Moggridge  v.  Jones,  14  East,  486,  Cas.  on  Contr.  638 ;  Spiller  v 
Westlake,  2  B.  &  Ad.  155,  Cas.  on  Contr.  654. 

3  5  Pick.  395,  Cas.  on  Contr.  757. 


COVENANTS   AND   PROMISES.  151 

note,  and  what  the  court  did  was  to  change  the  term  a 
of  the  note  because  of  what  appeared  in  the  bond. 

118.  Two  ordinary  promises,  in  order  to  be  mutual, 
must  be  given  in  consideration  of  each  other,  and  it 
seems  that  they  will  tlien  under  all  circumstances 
constitute  but  one  contract.  The  reason  is  that  they 
must  always  in  legal  contemplation  be  made  orally. 
When  they  are  reduced  to  writing,  the  writing  is 
technically  only  evidence  of  the  promises,  not  the 
promises  themselves  ;  and  hence  the  fact  of  their  being 
put  in  two  separate  writings  does  not  make  thera 
technically  two  contracts.  It  does,  however,  show 
that  the  parties  intended  to  make  each  promise  a 
separate  contract ;  and  therefore  it  cannot  be  supposed 
that  they  intended  to  make  either  of  them  dependent 
on  the  other.  Moreover,  the  writing,  though  only 
evidence  of  the  promise,  is  conclusive  evidence.  Each 
promise,  therefore,  is  what  the  writing  in  which  it  is 
contained  states  it  to  be,  and  it  can  no  more  be 
changed  by  the  writing  which  contains  the  counter- 
promise  than  it  can  be  changed  by  extrinsic  oral 
evidence.  Yet  if  the  writing  which  contains  one  of 
the  promises  could  be  used  to  show  that  the  other 
promise  is  dependent,  the  latter  promise  would  thus 
be  changed  from  an  absolute  to  a  conditional  one. 
These  principles  are  applicable  to  the  numerous  cases 
(particularly  in  England)  of  executory  sales  of  per- 
sonal property,  made  by  bought  and  sold  notes.  The 
bought  note,  therefore,  should  state  every  condition 
to  which  the  buyer's  promise  is  intended  to  be  subject, 
and  the  sold  note  should  do  the  same  as  to  the  seller'a 
promise.^ 

^  That  this  rule  is  generally  observed  in  practice,  see  Call  )nel  c 


152  DEPENDENT   AND   INDEPENDENT 

119.  A  bilateral  contract  may  have  for  its  object 
tlie  making  of  another  contract.  In  such  cases,  if 
the  object  is  carried  out,  there  will  of  course  be  two 
successive  contracts  between  the  same  parties,  one 
preliminary  and  the  other  final;  the  latter  being  the 
end,  the  former  a  means  to  that  end.  Thus,  a  mutual 
agreement  for  an  insurance  is  a  bilateral  contract, 
which  commonly  contemplates  the  issuing  of  a  policy.^ 
When  the  policy  is  issued,  the  bilateral  contract  is 
performed  and  at  an  end,  and  a  new  unilateral  con- 
tract is  made.  If  the  premium  is  not  actually  jJ^id, 
there  are  two  unilateral  contracts  or  obligations,  the 
premium  constituting  a  debt.  So  an  agreement  for  a 
lease  has  for  its  object  an  actual  lease,  and  when  the 
latter  is  made  the  bilateral  contract  is  at  an  end,  and 
a  new  contract,  partly  bilateral,  comes  into  existence. 
A  charter-party  also  (which  may  be  termed  a  lease  of 
a  vessel)  may  involve  the  same  distinction,  though  it  is 
not  so  strongly  marked.  So  the  performance  of  an 
executory  agreement  for  a  sale  may,  as  has  been  seen 
(112),  result  in  the  creation  of  one  or  more  unilateral 
contracts  or  obligations ;  e.  g.  if  the  purchase-money 
is  not  actually  paid  when  the  sale  is  made,  or  if  the 
seller  warrants  the  title  or  quality  of  the  property 
sold.  In  all  such  cases  the  preliminary  contract  must 
be  carefully  distinguished  from  the  final  one,  when 
any  question  of  implied  dependency  arises,  for  the 
performance  of  the  latter  will  never  be  dependent  by 

Briggs,  1   Salk.  112,  Cas.  on  Contr.  722;   Morgan  v.  Gath,  3  H.  &  C. 
748. 

1  See  McCulloch  v.  Eagle  Ins.  Co.,  1  Pick.  278.  Cas.  on  Contr. 
72 ;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390,  Cas.  on  Contr. 
106. 


COVENANTS   AND   PROMISES.  153 

implication  upon  the  performance  of  the  former.  It 
is  true  that  the  making  of  tlie  final  contract  b}^  either 
party  is  dependent  upon  the  performance  of  the  pre- 
liminary contract  b}^  the  other  party ;  but,  the  final 
contract  once  made,  the  preliminary  contract  is  out 
of  the  case.  Thus,  in  the  case  of  an  agreement  for 
insurance  on  the  usual  terms,  the  payment  of  the 
premium  will  be  a  condition  of  issuing  the  policy,  but 
if  the  insurer  chooses  to  issue  the  policy  without  pay- 
ment of  the  premium,  the  policy  will  not  be  conditional 
upon  its  payment.  So  if  an  agreement  for  a  sale  of 
real  estate  provide  that  the  deed  shall  contain  full 
covenants  for  title,  the  buyer  will  not  be  bound  to 
complete  the  purchase  unless  this  part  of  the  agree- 
ment be  performed ;  but  if  he  accepts  a  deed  without 
covenants,  he  will  be  obliged  to  pay  the  purchase- 
raone3^  The  distinction  in  question  is  not  always, 
however,  so  obvious  as  in  the  two  cases  just  put ;  for 
the  preliminary  and  final  contracts  are  frequently 
made  at  the  same  time,  and  treated  as  one  contract, 
the  parties  supposing  that  they  constitute  but  one 
contract  in  fact ;  and  then  it  becomes  necessary,  not 
only  to  separate  the  two  contracts  from  each  other, 
but  to  ascertain  by  construction  to  which  contract  a 
given  stipulation  belongs,  or  whether  it  belongs  to 
both.  Thus,  if  there  be  a  sale  of  unspecified  goods 
with  a  warranty  of  quality,  it  will  be  a  question  of 
construction  whether  the  warranty  is  to  continue  in- 
definitely, or  only  until  the  goods  are  identified  and 
accepted.  In  the  former  case,  however,  it  must  not 
be  supposed  that  the  warranty  is  the  same  contract 
before  and  after  the  title  to  the  goods  passes.  Befo7-e 
the   title   passes   it   is  one  of   the  stipulations  in  a 


154       DEPENDENT  AND  INDEPENDENT 

bilateral  contract,  and  the  performance  of  it  is  a  con- 
dition of  the  buyer's  obligation  to  purchase.  If, 
therefore,  tlie  goods  tendered  do  not  conform  to  tlie 
warranty,  the  buyer  may  reject  them ;  but  if  he 
accepts  them,  and  the  title  passes,  although  the  war- 
ranty continues,  it  becomes  a  new  unilateral  contract, 
and  the  breach  of  it  neither  enables  the  buyer  to 
return  the  goods  nor  to  defend  himself  against  the 
payment  of  the  purchase-money  ;  his  only  remedy  is 
an  action  for  damages. ^  In  Tidey  v.  Mollett^  the 
writing  was  in  the  first  instance  an  agreement  for  a 
lease,  but  on  the  24th  of  June,  if  the  house  had  been 
taken,  it  would  have  become  a  lease  ;  and  hence  the 
stipulations  on  the  part  of  the  plaintiff  belonged  to 
the  preliminary  contract  or  to  tlie  final  one,  according 
as  they  were  or  were  not  to  be  performed  before  the 
24th  of  June.  The  former,  therefore,  made  the  de- 
fendant's obligation  to  take  the  house  conditional ; 
but  if  he  had  taken  it,  they  would  not  have  made  his 
obligation  to  pay  the  rent  conditional.  The  latter, 
on  the  other  hand,  did  not  make  either  of  the  de- 
fendant's oblitjations  conditional :  not  the  oblififation 
to  take  the  house,  because  they  were  not  a  part  of  the 
preliminary  contract ;  not  the  obligation  to  pay  the 
rent,  because  a  lease  is  only  partly  bilateral.  In 
Thompson  v.  Gillespy^  the  defendant's  promise  to 
take  the  vessel  was  conditional  upon  her  being  tight, 
stanch,  and  strong,  but  not  his  promise  to  pay  freight. 
If  the  plaintiff  had  promised  that  the  vessel  should 

1  Per  Williams,  J.,  Behn  v.  Biirness,  3  Best  &  S.  751,  Cas.  on 
Contr.  556,  664  ;  Street  v.  Blay,  2  B.  &  Ad.  456. 

2  33  L.  J.  C.  P.  235,  Cas.  on  Contr.  567. 
8  5  El.  &  Bl,  209,  Cas.  on  Contr.  537. 


COVENANTS   AND   PROMISES.  15b 

be  tight,  stanch,  and  strong  at  the  time  of  sailing,  foi 
example,  the  promise  would  have  been  a  part  of  the 
final  contract,  but,  as  it  was,  it  was  only  a  part  of  the 
preliminary  contract.  In  any  view  of  the  case,  it  is 
quite  impossible  to  support  the  decision.  The  court 
admitted  that,  if  the  cargo  had  been  delivered  in 
safety,  the  full  freight  might  have  been  recovered, 
but  the  admission  was  fatal  to  the  decision,  for  the 
following  reasons :  First.  There  was  but  one  promise 
to  pay  the  one  fourth  of  the  freight  sued  for.  Secondly. 
By  the  terms  of  that  promise  the  freight  was  payable 
when  the  vessel  sailed,  if  ever.  Thirdly.  If  that 
promise  was  conditional  upon  the  vessel's  being  tight, 
stanch,  and  strong  when  she  began  to  load,  the  breach 
of  the  condition  would  have  been  equally  fatal,  though 
the  cargo  had  been  delivered  in  safety.  Fourthly. 
The  loss  of  the  cargo  could  not  affect  the  question 
before  the  court,  as  it  did  not  happen  till  after  the 
freight  was  payable.  Fifthly.  If  the  promise  sued  on 
was  conditional,  as  before  stated,  the  promise  to  pay 
the  remainder  of  the  freight  was  equally  so.  The 
fact  that  the  defendant  intended  to  insure  the  one 
fourth  of  the  freight  (assuming  that  fact  to  have  been 
established)  only  shows  that  he  ought  to  have  made 
tlie  payment  of  it  conditional,  not  that  he  did  do  so. 
Sixthly.  If  the  one  fourth  of  the  freight  had  been 
paid  before  the  cargo  was  lost,  it  clearly  could  not 
have  been  recovered  back.  In  Bankart  v.  Bowers  ^ 
the  preliminary  contract  was  for  the  purchase  and  sale 
of  real  estate,  and  all  the  clauses  in  the  written  agree- 
ment, except  clauses  5  and  7,  related  to  that  exclu- 
sively. Clauses  5  and  7,  however,  did  not  relate  to 
1  L.  R.  1  C.  P.  484,  Cas.  on  Contr.  753. 


156  DEPENDENT   AM)    INDEPENDENT 

the  preliminary  contract  at  all,  as  they  were  not  to 
come  into  operation  until  the  sale  was  executed.  The 
moment  the  sale  was  fully  executed  on  both  sides,  the 
whole  of  the  written  agreement,  except  clauses  5  and 
7,  would  become  functus  officio^  and  clauses  5  and  7 
would  become  the  only  subsisting  promises  between 
the  parties,  and  they  would  be  independent  of  each 
other,  and  neither  of  them  would  be  subject  to  any 
condition.  So  long  as  the  sale  remained  executory, 
the  promises  contained  in  clauses  5  and  7  were  indeed 
subject  to  the  express  condition  that  the  sale  should 
be  executed  (39),  and  it  was  because  that  condition 
had  not  been  complied  with  that  the  plaintiff  failed 
to  recover.  It  is  a  mistake  to  suppose  that  the 
plaintiff  failed  because  he  had  broken  the  preliminary 
contract;  it  was  immaterial  to  the  question  before 
the  court,  whether  it  was  the  fault  of  the  plaintiff  or 
of  the  defendant  that  the  sale  had  not  been  carried 
into  effect ;  if  it  was  the  fault  of  the  defendant,  the 
plaintiff  was  entitled  to  maintain  an  action  against 
him,  but  not  on  the  7th  clause  of  the  agreement.  In 
Bettisworth  v.  Campion,^  the  agreement  was  for  the 
purchase  and  sale  of  all  the  iron  made  in  such  a 
furnace  at  40s.  per  ton,  to  be  paid  for  on  deliver}'-. 
The  promise  to  sell  all  the  iron  made  in  the  furnace, 
and  the  corresponding  promise  to  buy  it  all,  belonged 
exclusively  to  the  executory  contract,  and  were  mutu- 
ally dependent;  but  the  obligation  to  pay  for  iron 
actually  delivered  and  received  under  the  contract  did 
not  belong  to  the  executory  contract  at  all,  and  there- 
fore was  not  dependent  upon  the  plaintiff's  promise 
to  sell  all  the  iron  made  in  the  furnace.  As  to  the 
1  Yelv.  134,  Cas.  on  Contr.  619. 


COVENANTS   AND   PROMISES.  157 

iron  which  had  been  delivered  and  received  under  the 
contract,  the  executory  contract  had  been  fully  per- 
formed on  both  sides  (112),  and  had  resulted  in  a 
debt  due  from  the  defendant  to  the  plaintiff  for  the 
price.  It  is  true  that  the  contract  in  this  case  did 
not  contemplate  any  ulterior  relation  of  debtor  and 
creditor  between  the  parties,  as  the  iron  was  to  be 
paid  for  on  delivery ;  but  the  seller  having  delivered 
the  iron  without  payment,  the  effect  was  the  same  as 
if  the  contract  had  been  to  deliver  it  upon  credit. 

120.  Such  are  the  conditions  which  must  exist  to 
render  implied  dependency  possible.  They  may  be 
enumerated  as  follows :  1st.  The  subject  of  implied 
dependency  must  be  a  covenant  or  a  promise,  as  dis- 
tinguished from  a  debt.  2dly.  The  subject  of  de- 
pendency and  the  thing  upon  which  it  depends  must 
be  of  the  same  nature,  i.  e.  they  must  both  be  covenants 
or  both  be  promises.  3dly.  The  covenants  or  the/ 
promises  must  be  mutual.  4thly.  They  must  each  be' 
a  part  of  the  same  contract ;  and  it  does  not  follow 
that  they  are  so,  because  they  are  made  at  the  same 
time,  or  are  contained  in  the  same  instrument.  5thly. 
If  in  writing,  they  must  each  be  contained  in  the  same 
instrument,  or  in  different  instruments  which  refer  to 
each  other.  6thly.  The  contract  wdiich  contains  the 
covenants  or  the  promises  must  be  wholly  bilateral,  or 
else  it  must  clearly  appear  that  the  covenants  or  s 
promises  in  question  were  given  and  received  in  pay-  1 
ment  for  each  other.  7thly.  The  performance  of  each 
of  the  covenants  or  promises  must,  it  seems,  be  equally 
certain  in  legal  contemplation. 

121.  Whenever  two  obligations  satisfy  each  of  the 
foregoing  conditions,  the  fact  is  established  that  the 


158       DEPENDENT  AND  INDEPENDENT 

performance  of  each  is  payment  for  the  performance 
of  the  other ;  and  hence  a  presumption  arises  that  the 
party  who  first  breaks  his  own  obligation  cannot 
enforce  performance  of  the  other,  for,  if  he  could,  he 
would  be  enforcing  the  performance  of  an  obligation 
without  paying  for  it  in  the  manner  agreed  upon. 
This  presumption  does  not  of  itself  establish  the  de- 
pendency of  either  of  the  covenants  or  promises  taken 
separately ;  it  merely  establishes  a  certain  relation 
between  them,  and  even  that  has  to  be  expressed  in 
negative  terms.  To  be  able  to  go  further,  and  say  of 
either  covenant  or  promise  whether  its  performance 
is  dependent,  L  e.  conditional,  upon  the  performance 
of  the  other,  another  element  must  be  taken  into 
consideration,  namely,  the  relative  time  of  perform- 
ance of  each  covenant  or  promise ;  for  in  order  that 
dependency  should  exist  between  two  covenants  or 
promises,  it  must  appear  either  that  one  is  to  be  per-  j 
formed  at  an  earlier  date  than  the  other,  or  that  the 
two  are  to  be  performed  at  the  same  date. 

122.  When  it  appears  that  one  of  two  covenants  or 
promises  is  to  be  performed  at  an  earlier  date  than 
the  other,  the  relative  time  of  performance  and  the 
presumption  stated  in  the  preceding  paragraph  estab- 
lish the  only  dependency  that  is  possible  between 
them,  namely,  that  of  the  latter  upon  the  former; 
and  hence  no  other  element  enters  into  the  question. 
In  such  cases,  tlierefore,  the  rule  is  simple  and  uniform.- 
namely,  that  the  covenant  or  promise  that  Is  to  be 
performed  first  is  independent  and  absolute,  while  the 
one  that  is  to  be  performed  last  is  dependent,  the  per- 
formance of  the  former  being  a  condition  precedent 
to  the  performance  of  ^he  latter.     Tin-  application  of 


^ 


COVENANTS   AND   PUOMISES.  159 

this  rule  will  vary  according  to  circumstances,  but  the 
rule  itself  is  uniform.  Whether  each  covenant  or 
promise  is  for  the  performance  of  a  single  act  or  of  a 
series'^f  acts,  and  whether  the  contract  consists  of 
several  covenants  or  promises  on  each  side  or  of  one 
only,  the  principle  is  the  same  ;  namely,  that  each  act 
to  be  performed  by  either  party  is  dependent  upon  all 
acts  to  be  previously  performed  by  the  other  party, 
while  it  is  independent  of,  and  a  condition  precedent 
to,  all  acts  to  be  subsequently  performed  by  the  other 
party.  Nor  is  it  material  whether  the  precise  time 
for  the  performance  of  each  act  is  fixed  (g.  g.  in  Grant 
i}.  Johnson^),  or  only  the  order  in  which  the  several 
acts  shall  be  performed ;  nor  whether  the  order  of 
performance  is  fixed  by  the  terms  of  the  contract,  or 
by  the  nature  of  the  acts  to  be  performed  and  their 
relations  to  each  other.  It  seems,  therefore,  that  the 
delivery  of  the  outward  cargo  in  Storer  v.  Gordon  ^ 
was  a  condition  precedent  by  implication  to  the  fur- 
nishing of  a  homeward  cargo,  as  the  former  necessarily 
preceded  the  latter  in  time  (166).  So  in  Fothergill 
V.  Walton,^  the  shipment  of  the  cargo  of  brandy  at 
Havre  necessarily  preceded  in  time  the  furnishing  of 
a  cargo  of  fruit  in  the  West  Indies,  and  hence  the 
former  was  a  condition  precedent  by  imj)lication  to 
the  latter  (166).  Nor  does  it  seem  to  be  material 
whether  the  order  of  performance  is  fixed  at  the  time 
of  making  the  contract,  or  afterwards,  pursuant  to  the 
contract ;  and  therefore  the  decision  in  Dicker  v. 
Jackson'^  must  be  deemed  erroneous. 

1  1  Seld.  247,  Cas.  on  Contr.  603. 

2  3  M.  &  S.  308,  Cas.  on  Contr.  639. 
8  8  Taunt.  576.  Cas.  on  Contr.  645. 
*  6  C.  B.  103,  Cas.  on  Contr.  676. 


160  DEPENDENT   AND   INDEPENDENT 

123.  In  deciding,  however,  whether  a  given  con- 
tract requires  a  series  of  acts  or  only  a  single  act  to 
be  performed  by  either  party,  it  is  necessary  to  dis- 
tinguish between  those  acts  which  are  done  in  per- 
formance of  the  conti-act,  and  a  failure  to  do  which 
will  be  a  breach  of  the  contract,  and  those  acts  w^hich 
it  is  necessary  for  either  party  to  do  to  enable  him  to 
perform  the  contract,  but  the  doing  of  which  concerns 
himself  alone.  In  an  executory  contract  of  sale,  for 
example,  it  is  in  strictness  always  necessary  for  one  or 
both  of  the  parties  to  do  one  or  more  preliminary  acts 
in  order  to  render  the  performance  of  the  contract 
possible ;  for  not  only  must  the  parties  meet  at  the 
time  and  place  appointed  for  the  performance  of  the 
contract,  but  the  money  must  be  there  ready  to  be 
paid,  and  the  goods  or  the  deed  of  conveyance  must 
also  be  there  ready  to  be  delivered.  If  there  is  a 
failure  in  either  of  these  particulars,  the  party  in  fault 
will  be  unable  to  perform  the  contract,  and  yet  these 
preliminary  acts  generally  constitute  no  part  of  such 
performance,  which  consists  simply  in  the  act  of  pay- 
ing the  money  on  one  side,  and  delivering  the  goods 
or  the  deed  of  conveyance  on  the  other.  Therefore, 
in  Morton  v.  Lamb,  ^  there  was  no  foundation  for  the 
argument  that  the  first  act  to  be  done  in  performance 
of  the  contract  was  to  carry  the  wheat  to  Shardlow, 
and  hence  that  a  failure  by  the  defendant  to  do  that 
constituted  a  breach  of  the  contract,  and  made  it  un- 
necessary for  the  plaintiff  to  do  anything  on  his  part. 
It  is  true  that  the  defendant  could  not  perform  the 
contract  unless  he  had  the  wheat  at  Shardlow  at 
the  time  appointed,  but  the  only  right  secured  to  the 
1  7  T.  11.  125,  Cas.  on  Coiitr.  727. 


COVENANTS  AND   PROMISES.  161 

plaintiff  by  the  contract  was  to  have  the  wheat  de- 
livered to  him  at  Shardiow  at  the  time  appointed,  and 
hence  there  could  be  no  breach  of  the  contract  by  the 
defendant  until  the  time  for  delivery  arrived. 

124.  When  a  purchaser  of  real  estate  requires  time 
for  the  payment  of  the  purchase-money,  it  is  frequently 
agreed  that  he  shall  have  immediate  possession,  but 
that  the  seller  shall  retain  the  title  for  his  security 
tintil  the  purchase-money  is  paid,  the  purchaser  paying 
interest  in  the  mean  time  in  lieu  of  rent.^  In  such 
cases,  of  course,  the  giving  of  possession  according  to 
the  agreement  is  a  condition  precedent  to  the  pay- 
ment of  interest.  The  peculiarity  of  Wilks  v.  Smith  ^ 
was  that  the  contract  was  silent  in  regard  to  posses- 
sion ;  and  though  the  agreement  to  pay  interest  raised 
a  violent  conjecture  that  the  purchaser  was  to  have 
possession,  yet  that  was  not  a  basis  upon  which  the 
court  could  act,  and  so  it  was  necessarily  held  that  the 
agreement  to  pay  interest  was  absolute.  The  contract 
required  the  seller  to  do  nothing  until  the  purchase- 
money  was  paid. 

125.  When  the  performance  of  a  contract  consists 
in  doing  (^faeiendo')  on  one  side,  and  in  giving  (^dmido) 
on  the  other  side,  the  presumption  will  be  that  the 
former  is  to  be  performed  first.  It  is  scarcely  possible 
that  the  two  sides  should  be  performed  together,  as 
one  naturally  requires  time  for  its  performance,  while 
the  other  can  be  performed  in  a  moment.  It  cannot 
be  presumed  that  the  latter  is  to  be  performed  first, 

1  See  Mattock  v.  Kinglake,  10  Ad.  &  El.  50,  Gas.  on  Contr.  662 
(where  the  purchaser  was  aheady  in  possession) ;  Dicker  v.  Jackson, 
6  C.  B    103,  Cas.  on  Contr.  676. 

2  10  M.  &  W.  355,  Cas.  on  Contr.  666. 

11 


162  DEPENDENT   AND   INDEPENDENT 

as  the  law  will  never  presume  that  a  thing  is  to  be 
paid  for  before  it  is  done.  ^  Hence,  either  the  former 
must  be  a  condition  precedent,  or  the  two  must  be 
wholly  independent  of  each  other;  but  to  hold  the 
latter  would  be  to  disregard  the  presumption  stated 
in  §  121,  as  well  as  the  presumption  that  a  thing  is 
to  be  done  before  it  is  paid  for.  In  all  contracts  for 
service,  therefore,  the  presumption  is  that  the  per- 
formance of  the  service  is  a  condition  precedent  to  the 
payment  for  it.  In  Spanish  Ambassador  v.  GifEord  ^ 
the  question  was  whether  this  presumption  was  re- 
butted by  the  terms  of  the  agreement.  The  court 
seems  to  have  supposed  that  the  agreement  stated  in 
the  declaration  imported  that  the  defendant  was  to 
be  paid  in  advance  for  making  the  voyage  ;  and  the 
word  "  repay "  certainly  countenances  that  view, 
especially  as  a  declaration  must  be  construed  most 
strongly  against  the  plaintiff. 

126.  In  the  second  case  put  in  Anon.^  the  contract 
consisted  in  doing  on  one  side  and  in  giving  on  the 
other,  and  that  would  probably  be  a  sufficient  reason 
for  holding  the  marriage  to  be  a  condition  precedent 
to  the  making  of  the  estate-tail ;  but  there  is  another 
reason  also,  namely,  that  an  estate  in  special  tail  is 
seldom  made  except  to  husband  and  wife;  and  though 
it  is  legally  possible  to  make  such  an  estate  to  a  man 
and  woman  who  are  not  married,  yet  there  is  a  strong 
presumption  against  an  intention  to  do  so. 

127.  When  one  of  the  parties  to  a  contract  cove- 
nants or  promises  to  give  security  for  the  performance 

1  Peeters  v.  Opie,  2  Wins.  Saund.  350,  Cas.  on  Contr.  792. 

2  1  Kol.  83G,  Cas.  on  Contr.  620. 

»  Y.  B.  15  Hen.  VII.  fol.  10  b,  pi.  7,  Cas.  on  Contr.  442. 


COVENANTS  AND  PROMISES.  163 

of  the  contract  on  his  part,  a  strong  presumption  arises 
that  he  is  not  to  acquire  any  rights  under  the  con- 
tract until  the  security  is  gi  v' en ;  for  the  covenant  or 
promise  to  give  security  is  of  no  vahie  as  a  covenant 
or  promise,  and  therefore,  if  the  other  party  may  be 
compelled  to  perform  the  contract  on  his  part  before 
the  security  is  given,  his  object  in  requiring  security 
will  be  defeated.  The  court,  therefore,  will  hold,  if 
the  language  of  the  contract  admits  of  such  an  inter- 
pretation, that  the  giving  of  security  was  intended  to 
be  a  condition  precedent  to  performance  by  the  other 
party.i 

128.  To  the  rule  stated  in  §  122  there  is  one 
apparent  exception,  namely,  where  a  part-perform- 
ance of  a  contract  on  one  side  creates  a  debt  on  the 
other  side;  for  the  debt,  for  the  reasons  heretofore 
given  (112),  is  not  a  part  of  the  bilateral  contract, 
and  hence  the  payment  of  it  is  not  a  condition  pre- 
cedent to  any  subsequent  performance  by  the  creditor. 
Thus,  where  a  contract  for  the  sale  of  goods  provides 
that  the  goods  shall  be  delivered  in  instalments,  and 
each  instalment  paid  for  separately,  either  at  the  time 
of  delivery  or  at  some  other  specified  time,  the  paying 
for  instalments  already  delivered  will  not  be  a  condi- 
tion precedent  to  the  delivery  of  subsequent  instal- 
ments. This  must  be  deemed  the  true  ground  of  the 
decision  in  Freeth  v.  Burr.^  It  was  also  the  reason 
for  the  opinion  expressed  by  Patteson,  J.,  in  Withers 
V.  Reynolds  3  (and  which  has  been  so  often  referred 

1  Roberts  v.  Brett,  11  H.  L.  Cas.  337,  Cas.  on  Contr.  575 ;  Kingston 
V.  Preston,  cited  in  Jones  v.  Barkley,  Dougl.  684,  Cas.  on  Contr.  901 
905. 

2  L.  R.  9  C.  P.  208,  Cas.  on  Contr.  712. 

3  2  B.  &  Ad.  882,  Cas.  on  Contr.  740,  742. 


164       DEPENDENT  AND  INDEPENDENT 

to  with  approbation),  namely,  that  the  mere  refusal 
by  the  phiintiff  to  pay  for  a  load  of  straw  already 
delivered  was  not  of  itself  an  excuse  to  the  defendant 
for  delivering  no  more  straw.  So  if  a  contract  for 
service  provide  that  the  service  shall  be  paid  for  at 
the  end  of  stated  periods,  e.  g.  that  each  month's 
service  shall  be  paid  for  at  the  end  of  the  month,  a 
failure  to  pay  at  the  end  of  any  month  will  not  justify 
the  other  part}^  in  refusing  to  serve  during  the  follow- 
ing month.  So  in  Franklin  v.  Miller  ^  the  plaintiff's 
obligation  to  pay  the  defendant  1/.  per  week  was 
unilateral,  the  1/.  per  week  being  a  debt  created  by 
the  plaintiff's  receipt  of  40Z.  quarterly.  But  this 
principle  will  not  commonly  apply  to  a  building  con- 
tract which  provides  for  paj^ments  by  instalments  as 
the  work  progresses ;  for  the  respective  instalments 
are  not  payments  for  the  work  already  done,  but  they 
are  part-payments  in  advance  for  the  entire  work. 
They  are  not  debts,  therefore,  and  they  are  only  pay- 
able by  virtue  of  express  covenants  or  promises.  The 
same  question  was  involved  in  Haveloek  v.  Geddes ;  ^ 
for  the  plaintiff's  right  to  recover  instalments  of 
freight  which,  by  the  terms  of  the  cliarter-party,  had 
not  become  payable  when  the  vessel  was  lost,  depended 
upon  whether  freight  was  earned  monthly.  If  it  was, 
the  decision  in  favor  of  the  plaintiff  was  correct.  The 
true  construction  seems  to  have  been,  however,  that 
no  freight  was  earned  until  the  final  discharge  of  the 
vessel ;  and  if  so,  the  special  covenants  to  make  pay- 
ments in  advance  on  account  of  freight  were  dependent 
upon  the  plaintiff's  performing  the  charter-party  on 

1  4  Ad.  &  El.  599,  Cas.  on  Contr.  872. 

2  10  East,  555,  Cas.  on  Contr.  857. 


COVENANTS   AND   PROMISES.  165 

liis  part,  just  as  the  plaintiff's  obligation  to  perform 
the  charter-party  was  dependent  upon  the  defendant's 
making  the  payments  as  agreed.  It  seems  also  that, 
when  a  contract  under  seal  contains  an  express 
covenant  to  pay  a  sum  of  money,  the  performance  of 
the  covenant  may  be  a  condition,  notwithstanding  the 
money  would  have  constituted  a  debt  without  any 
covenant  to  pay  it  (112). 

129.  According  to  an  opinion  which  has  generally 
prevailed,  another  exception  must  be  made  to  the  rule 
stated  in  §  122,  namely,  when  a  thing  which  requires 
an  indefinite  length  of  time  for  its  performance  is  to 
be  paid  for  at  a  day  certain,  which  may  arrive  before 
the  performance  on  the  other  side  is  or  can  be  com- 
pleted ;  e.  g.  where  the  plaintiff  covenanted  to  teach 
the  defendant  the  mode  of  using  a  certain  patent,  and 
the  defendant  covenanted  to  pay  the  plaintiff  250Z.  in 
one  year ;  ^  or  where  the  plaintiff  covenanted  to  intro- 
duce the  defendant  as  his  successor  in  business  on  and 
after  the  1st  of  January,  1846,  and  to  use  his  best 
endeavors  to  establish  the  defendant  in  said  business, 
and  the  defendant  covenanted  to  pay  the  plaintiff  50Z. 
on  the  25th  of  March,  1846  ;^  or  where  the  plaintiff, 
having  sold  his  business  to  the  defendant,  covenanted 
not  to  interfere  with  the  latter  by  engaging  in  the 
same  kind  of  business,  and  the  defendant  covenanted 
to  pay  the  plaintiff  an  annuity.^  In  each  of  the  fore- 
going cases  the  defendant's  covenant  was  held  to  be 
independent  and  absolute,  but  in  each  of  them  except 

1  Campbell  v.  Jones,  6  T.  R.  570,  Cas.  on  Contr.  839. 

2  Judson  V.  Bowden,  1  P]xch.  16*2,  Cas.  on  Contr.  673. 

8  Hunlocke  v.  Blacklowe,  2  Wms.  Saund.  156,  Cas.  on  Contr.  627; 
Carpenter  v.  Creswell,  4  Bing.  409,  Cas.  on  Contr.  870. 


166  DEPENDENT   AND   INDEPENDENT 

Judson  V.  Bowden  the  decision  can  be  sustained  upon 
the  ground,  that  the  contract  was  only  partly  bilateral ; 
and  in  Judson  v.  Bowden  the  decision  must,  it  seems, 
be  deemed  erroneous.  If  the  defendant's  covenant 
had  been  expressly  conditional  upon  the  plaintiff's  not 
breaking  his  covenant  before  the  25th  of  March,  there 
is  no  doubt  that  the  condition  would  have  been  good 
and  valid.  Why,  then,  should  not  such  a  condition  be 
implied  ?  There  seems  to  be  every  reason  for  it  that 
there  can  be  for  implying  a  condition  in  any  case. 
The  defendant  was  confessedly  compelled  to  pay  the 
501.  without  receiving  for  it  the  equivalent  which  had 
been  agreed  upon  ;  and  the  plaintiff  was  permitted  to 
maintain  an  action  on  a  contract  which  he  had  con- 
fessedly been  the  first  to  break.  It  is  true  that 
performance  by  the  plaintiff  after  March  25  would 
not  be  a  condition  precedent  to  the  defendant's  per- 
formance. Why?  Because  it  would  come  after  it. 
It  ought  to  follow,  then,  that  performance  by  the 
plaintiff  before  the  25th  of  March  would  be  a  condi- 
tion precedent.  In  deciding  the  foregoing  cases  the 
courts  were  undoubtedly  influenced  by  an  apprehen- 
sion that,  if  the  defendant's  covenant  was  held  to  be 
dependent,  the  slightest  breach  on  the  part  of  the 
plaintiff  would  be  fatal  to  his  right  to  recover  the 
money  ;  but  that  apprehension  is  shown  elsewhere  not 
to  have  been  well  founded  (161). 

130.  In  Rolt  V.  Cozens  ^  the  same  question  would 
have  arisen  as  in  the  cases  last  referred  to,  if  the 
court  had  held  that  the  contract  was  bilateral,  and 
that  the  plaintiff  had  promised  to  forboar  perpetually 
or  for  an  indefinite  length  of  time.  It  is  impossible  to 
1  25  L.  J.  C.  P.  254,  Cas.  on  Contr.  543. 


COVENANTS   AND  PROMISES.  167 

deal  with  the  case  intelligently  without  first  ascer- 
taining what  was  the  cause  of  action  on  which  the 
plaintiff  was  to  forbear  to  take  proceedings  against 
Wale  and  Dawe.  I'he  supposition  that  it  was  the 
guaranty  given  by  Wale  and  Dawe  to  the  plaintiffs 
would  be  fatal  to  the  decision  of  the  court,  for  no  right 
of  action  could  accrue  on  that  guaranty  before  Dec. 
13,  1854,  as  the  debt  guai-anteed  did  not  become  due 
until  that  date,  and  forbearing  to  bring  an  action 
before  the  right  of  action  accrued  would  be  no  con- 
sideration for  the  defendant's  promise.  Nor  is  such 
a  supposition  rational  in  point  of  construction,  for  a 
promise  cannot  be  supposed  to  be  made  for  a  con- 
sideration which  contemplates  a  breach  of  the  promise, 
and  yet  it  was  only  in  the  event  of  the  breach  of  the 
defendant's  promise  that  a  cause  of  action  would  ever 
accrue  on  the  guaranty  given  by  Wale  and  Dawe. 
Moreover,  the  proceedings  which  it  was  the  object  of 
the  contract  to  prevent  were  actually  taken  by  the 
plaintiff  before  the  13th  of  December,  and  yet  those 
proceedings  could  not  have  been  on  the  guaranty,  as  the 
debt  was  confessedly  not  then  due.  It  may  fairly  be 
inferred,  therefore,  that  the  forbearance  contemj)lated 
by  the  contract  was  to  take  the  proceedings  which 
the  plaintiff  had  threatened  to  take  against  Wale  and 
Dawe  for  fraudulent  representations. ^  Assuming  this 
to  be  so,  there  was  no  ground  for  limiting  the  forbear- 
ance to  the  loth  of  December,  and  hence  the  contract 
must  have  been  bilateral,  the  word  "forbearing" 
meaning  "  agreeing  to  forbear  "  without  limitation  as 
to  time.  This  construction  recommends  itself  for 
another  reason,  namely,  that  it  makes  the  defendant's 
1  S.  C.  18  C.  B.  673. 


168  DEPENDENT   AND  INDEPENDENT 

guaranty  binding  from  the  time  when  it  was  given, 
while  the  construction  adopted  by  the  court  made  it 
revocable  until  the  13th  of  December,  when  the  debt 
guaranteed  would  become  due.  Upon  the  whole,  it 
seems  that  forbearance  by  the  plaintiff  until  the  13th 
of  December  was  a  condition  precedent  to  the  de- 
fendant's liability,  though  for  a  different  reason  from 
the  one  given  by  the  court. 

131.  The  decision  in  Terry  v.  Duntze,^  or  rather 
the  reason  given  for  it  (164),  is  much  less  reconcilable 
with  principle  than  any  of  those  hitherto  commented 
upon ;  for  the  defendant  there  did  not  promise  to  pay 
the  plaintiff  for  any  portion  of  his  work  before  he 
had  done  it ;  he  merely  promised  to  pay  him  in  instal- 
ments as  the  work  progressed.  If  nothing  had  been 
said  about  the  time  of  payment,  no  payment  would 
have  been  due  until  the  whole  of  the  work  was  done ; 
and  because  the  defendant  had  relieved  the  plaintiff 
of  this  hardship  by  promising  to  pay  for  the  work  as 
fast  as  it  was  done,  the  court  came  to  the  extraordinary 
conclusion  that  he  might  be  compelled  to  pay  the  whole 
of  the  money  before  any  of  the  work  was  done.  In- 
deed, it  would  follow  (as  no  date  was  fixed  for  any  of 
the  payments)  that  the  defendant  might  be  compelled 
to  pay  the  whole  of  the  money  immediately  upon 
making  the  contract.  The  mere  statement  of  such 
reasoning  is  its  best  refutation.  The  case  has  not 
been  followed  in  England,  though  it  has  never  been 
formally  overruled.  In  this  country  it  has  been  dis- 
tinctly repudiated,^  and  it  clearly  cannot  be  considered 
as  law. 

1  2  H.  Bl.  389,  Cas.  on  Contr.  634. 

2  Cunningham  v.  Morrell,  10  Johns.  203,  Cas.  on  Contr.  600. 


COVENANTS   AND   PROMISES.  169 

132.  When  two  covenants  or  promises  are  to  be 
performed  at  the  same  time,  no  principle  hitherto 
stated  will  establish  any  dependency  between  them ; 
for  there  is  no  ground  for  saying  that  either  is  to  be 
performed  before  the  other,  and  therefore  neither  can 
be  a  condition  precedent  in  respect  to  the  other.  Nor 
can  either  party  be  prevented  from  suing  on  the  con- 
tract upon  the  ground  that  he  was  the  first  to  break  it, 
for,  in  legal  contemplation,  it  will  be  broken  by  both 
at  the  same  instant.  Moreover,  if  one  party  is  disabled 
from  suing  because  he  has  himself  broken  the  contract, 
the  other  will  be  so  too,  and  hence  neither  can  com- 
pel the  other  to  perform  without  performing  himself 
first,  and  thus  giving  his  adversai'y  an  advantage  to 
which  he  is  not  entitled.  Unless  some  other  mode 
of  dependence  can  be  found,  therefore,  the  necessary 
result  will  be  that  both  the  covenants  or  promises  will 
be  independent  and  absolute.  Yet  such  a  result  will 
be  unsatisfactory,  as  it  enables  each  party  to  compel 
performance  by  the  other,  while  refusing  himself  to 
give  the  equivalent  agreed  upon,  thus  ignoring  the  fact 
that  the  performance  of  each  party  is  payment  for  the 
performance  of  the  other.  The  law  has  found  the 
means,  however,  of  avoiding  these  opposing  difficulties, 
of  reconciling  the  just  claims  of  both  parties,  and  of 
doing  perfect  justice  to  each,  by  raising  a  presumption, 
from  the  fact  that  the  covenants  or  promises  are  to  be 
performed  on  the  same  day,  that  they  are  to  be  per- 
formed at  the  same  moment,  and  concurrently.  While, 
therefore,  neither  is  a  condition  precedent,  the  per- 
formance of  each  is  conditional  upon  the  other's  being 
performed  at  the  same  time.  Hence  the  covenants  or 
promises  are  mutually  dependent,  and  they  also  con- 


170       DEPENDENT  AND  INDEPENDENT 

stitute  mutual  aud  concurrent  conditions.  As  this 
kind  of  dependency  is  founded  upon  equality,  which  is 
]ustrce,  and  as  it  does  not  require  either  party  to  trust 
the  other,  it  is  regarded  by  the  law  with  much  favor. 
Whenever,  therefore,  mutual  dependency  between  two 
covenants  or  promises  is  possible  and  appropriate,  the 
law  will  make  every  intendment  in  its  favor  that  is 
consistent  with  the  terms  of  the  contract. 

133.  Several  conditions  must  concur,  however,  to 
make  mutual  dependency  possible  and  appropriate. 
1st.  Each  of  the  covenants  or  promises  must  be  capa- 
ble of  performance  in  a  moment  of  time ;  for  otlier- 
wise  it  will  not  be  possible  for  them  to  be  performed 
concurrently.  2dly.  The  object  of  the  covenants  or 
promises  must,  it  seems,  be  the  exchange  of  some  prop- 
erty or  right  for  some  other  property  or  right ;  other- 
wise mutual  dependency  will  be  inappropriate.  For 
this  reason,  as  well  as  the  former,  two  covenants  or 
promises  can  seldom,  if  ever,  be  mutually  dependent, 
unless  they  both  consist  in  giving  (dando)  as  distin- 
guished from  doing  (^faciendo').  In  particular,  mutual 
covenants  or  promises  which  are  entered  into  for  the 
promotion  of  some  object  common  to  both  parties 
can  never,  it  seems,  be  mutually  dependent  (108). 
3dly.  The  exchange  contemplated  by  the  covenants 
or  promises  must  be  between  the  parties  thereto  ;  other- 
wise it  cannot,  in  legal  contemplation,  be  made  in  an 
instant  of  time.  Mutual  promises,  therefore,  between* 
A  and  B,  that  A  shall  give  something  to  B,  and  B' 
shall  give  something  to  C,  will  not  be  mutually  de- 
pendent.^    4thly.  The  covenants  or  promises  must  be 

'  Jones  V.  Barkley,  Dougl.  684,  Cas.  on  Contr.  901 ;  Northrup  v 
Nortlirup,  G  Cow.  296,  Cas.  on  Contr.  721. 


COVENANTS   AND   PROMISES.  171 

capable  of  being  performed  at  the  same  place  ;  other- 
wise they  cannot  be  performed  at  the  same  time.  For 
this  reason,  among  others  already  given  (126),  it 
seems  there  could  be  no  mutual  dependency  in  the 
second  case  put  in  Anon. ;  ^  for  the  estate-tail  could 
be  created  only  by  livery  of  seisin  on  the  land,  and  it 
could  scarcely  be  contemplated  that  the  marriage 
should  be  solemnized  at  the  same  time  and  place. 
5thly.  Of  course  it  must  appear,  expressly  or  by  im- 
plication, that  the  covenants  or  promises  are  to  be 
performed  in  fact  at  the  same  time;  but  if  all  the 
foregoing  conditions  are  satisfied,  and  if  it  does  not 
expressly  appear  that  the  covenants  or  promises  are  to 
be  performed  at  different  times,  the  law  will  intend, 
in  favor  of  mutual  dependency,  that  they  are  to  be 
performed  at  the  same  time.  Hence,  it  will  be  suffi- 
cient if  no  time  be  specified  for  performance  on  either 
side.^  So  if  the  time  be  specified  for  the  performance 
of  one  of  the  covenants  or  promises  while  the  contract 
is  silent  as  to  the  other,  the  law  will  intend  that  the 
latter  is  to  be  performed  at  the  time  fixed  for  the 
former.^  So  if  one  of  the  covenants  or  promises  is  to 
be  performed  on  or  before  a  certain  day,  and  "  on  its 
performance  "  the  other  is  to  be  performed,  the  mean- 
ing will  be  that  the  latter  is  to  be  performed  on  tlie 
day  named,  or  at  the  same  time  as  the  former,  if  the 
former  shall  be  performed  before  the  day  named.'* 

134.  Even  when  a  contract  for  the  sale  of  goods 
specifies  a  day  for  the  delivery  of  the  goods,  and  a 

1  Y.  B.  15  Hen.  VII.  fol.  10  b,  pi.  7,  Gas.  on  Contr.  442. 

2  Rawson  v.  Johnson,  1  East,  203,  Cas.  on  Contr.  805. 

3  Morton  v.  Lamb,  7  T.  R.  125,  Cas.  on  Contr.  727. 

♦  Dunham  v.  Pettee,  4  Seld.  508,  Cas.  on  Contr.  762.     But  as  to 
the  last  two  propositions,  see  §§  145-147. 


172  DEPENDENT   AND   INDEPENDENT 

later  day  for  the  payment  of  the  price,  if  the  day  of 
payment  arrives  before  the  goods  are  actually  delivered, 
it  seems  that  the  delivery  and  payment  will  become 
concurrent  acts,  provided  the  delay  in  making  the 
delivery  has  not  been  caused  by  the  seller.^ 

135.  Of  the  two  kinds  of  dependency  which  are 
the  subjects  of  preceding  paragraphs,  and  which  may 
be  distinguished  as  general  dependency  and  mutual 
dependency,  it  has  been  seen  that  the  former  may, 
and  commonly  does,  extend  to  every  part  of  the  con- 
tract in  which  it  is  found,  without  regard  to  the 
number  of  covenants  or  promises  which  the  contract 
contains,  or  the  number  of  acts  which  each  covenant 
or  promise  requires  to  be  performed  (116,  122). 
Mutual  dependency,  on  the  other  hand,  as  the  term 
"mutual"  necessarily  implies,  is  a  relation  existing 
between  two  acts,  and  hence  it  cannot  extend  to  the 
whole  of  any  contract  which  requires  several  indepen- 
dent acts  to  be  performed  by  either  party.  It  may, 
however,  exist  between  two  acts  constituting  a  part 
of  a  contract,  as  well  as  between  two  acts  consti- 
tuting the  whole  of  a  contract.  In  a  contract,  there- 
fore, which  requires  the  performance  of  only  one  act 
by  each  party,  there  may  be  either  general  dependency 
or  mutual  dependency,  but  of  course  either  is  exclu- 
sive of  the  other.  If  the  two  acts  are  to  be  performed 
at  different  times,  there  can  be  only  the  former ;  if  at 
the  same  time,  there  can  be  only  the  latter.  On  the 
other  hand,  in  contracts  which  require  the  performance 
of  several  independent  acts  by  either  or  each  party, 
there  may  be  either  a  general  dependency  alone,  ex- 
tending to  the  whole  contract,  or  a  mutual  dependency 
1  See  Staunton  v.  Wood,  16  Q.  B.  638,  Cas   on  Contr.  517. 


COVENANTS   AND   PROMISES.  173 

alone  between  two  of  the  acts  to  be  performed,  or  there 
may  be  both ;  for  in  such  cases  each  rests  upon  inde- 
pendent grounds,  and,  though  mutual  dependency  will 
not  often  be  found  in  fact  except  where  there  is  gen- 
eral dependency  also,  yet  in  strictness  the  existence  of 
either  is  no  argument  for  or  against  the  existence  of 
the  other.  In  order  that  general  dependency  may 
exist,  the  contract  as  a  whole  must  satisfy  the  con- 
ditions stated  in  §  120;  and  in  order  that  mutual  de- 
pendency may  exist,  the  two  acts,  in  regard  to  which 
the  question  arises,  must  satisfy  the  conditions  stated 
in  §  133,  as  well  as  those  stated  in  §  120.  A  distinc- 
tion which  should  be  particularly  borne  in  mind  is 
that  general  dependency  requires  that  the  two  sides 
of  the  contract,  taken  as  a  whole,  should  be  in  payment 
for  each  other,  instead  of  which  mutual  dependency 
requires  that  the  two  acts  in  question  should  be  in 
payment  for  each  other.  A  familiar  instance  of  a 
contract  in  which  there  is  both  a  general  and  a  mutual 
dependency  is  a  contract  for  the  sale  of  real  estate, 
where  no  credit  is  to  be  given,  and  where  either  or 
each  party  stipulates  to  do  certain  acts  preliminary  to 
the  passing  of  the  title  and  the  payment  of  the  money. 
A  special  instance  of  the  same  thing  seems  to  be 
found  in  the  case  of  Giles  v.  Giles. ^  The  court  there 
adopted  the  view,  that  delivering  up  possession  of  the 
premises  in  question,  paying  the  rent,  and  executing 
the  release  in  question,  were  to  be  treated  as  one  act ; 
and  that  between  that  act  on  the  part  of  the  plaintifiE 
and  the  payment  of  the  200^.  by  the  defendant  there 
was  a  mutual  dependency.  If  this  view  were  tenable 
in  other  respects,  there  might  be  no  serious  objection 

'  9  Q.  B.  164,  Cas.  on  Contr.  744. 


174       DEPENDENT  AND  INDEPENDENT 

to  treating  the  three  things  to  be  done  by  the  plaintiff 
as  one  act,  for  they  were  capable  of  being  performed 
together,  and  the  terms  of  the  contract  were  at  least 
consistent  with  the  supposition  that  they  were  expected 
to  be  so  performed  ;  but  clearly  the  2001.  was  not  pay- 
ment for  the  three  acts  to  be  done  by  the  plaintiff. 
It  is  plain  that  the  plaintiff  was  to  deliver  up  posses- 
sion of  the  pi'emises  and  pay  the  rent  at  the  end  of 
the  year  in  consideration  of  his  being  permitted  to 
occupy  the  premises  during  the  year ;  and  hence  it 
follows  that  he  was  to  execute  the  release  in  consider- 
ation of  being  paid  the  200?.  The  latter  proposition 
is  also  proved  by  the  fact  that  interest  was  to  be  paid 
on  the  200?.  from  the  date  of  the  agreement.  The 
mutual  dependency,  therefore,  was  limited  to  the  exe- 
cution of  the  release  on  one  side,  and  the  payment  of 
the  200?.  on  the  other  ;  and  the  plaintiff's  obligation 
to  do  the  other  two  acts  was  absolute.  The  effect  of 
the  decision  was  that,  if  the  defendant  failed  to  pay 
the  200?.,  the  plaintiff  might  refuse  either  to  deliver 
up  possession  of  the  premises  or  to  pay  the  rent,  —  a 
position  which  was  clearly  untenable. 

136.  In  Roberts  v.  Brett  ^  there  was  a  general  de- 
pendency between  the  two  sides  of  the  contract,  and 
there  were  also  two  mutual  acts  which  were  to  be 
performed  at  the  same  time  ;  and  yet  the  latter  were 
not  mutually  dependent,  because  they  were  not  in 
payment  for  each  other.  It  was  only  an  accident  that 
each  party  was  required  to  give  a  bond  ;  for  the  object 
of  each  in  requiring  a  bond  was  not  to  indemnify  him- 
self for  giving  one,  but  to  obtain  security  for  the  per- 
formance of  the  principal  contract.  In  other  words, 
1  11  H.  L.  Cas.  337,  Cas.  on  Contr.  576. 


COVENANTS   AND   PROMISES.  175 

each  party  required  a  bond,  not  because  he  had  to  give 
one  himself,  but  because  he  was  not  satisfied  with  the 
pecuniary  responsibihty  of  the  other  party.  The  only 
consequence,  therefore,  of  each  party's  stipulating  to 
give  a  bond  at  the  same  time  was  to  make  tlie  two 
acts  independent  of  each  other.  There  are  two  or 
three  other  cases  in  which,  it  seems,  the  same  view 
ought  to  have  been  taken  as  in  Roberts  v.  Brett. 
Thus,  in  Glazebrook  v.  Woodrow,^  the  conveyance  of 
the  school-house  was  only  part-payment  for  the  1201., 
and  not,  it  seems,  the  principal  part.  The  main  subject 
of  the  transaction  was  the  school,  and  the  house  was 
only  an  incident.  The  plaintiff,  therefore,  having 
covenanted  to  transfer  the  school,  and  even  the  pos- 
session of  the  house,  to  the  defendant  more  than  a 
year  before  the  money  was  to  be  paid,  there  seems  to 
have  been  no  ground  for  holding  that  the  payment  of 
the  money  and  the  assignment  of  the  house  were 
mutually  dependent  acts,  though  the  same  date  was 
fixed  for  doing  each ;  and  if  they  were  not  mutually 
dependent,  they  were  mutually  independent.  It  may 
be  urged  as  an  objection  to  this  view,  that  the  plaintiff 
clearly  intended  to  retain  the  title  to  the  house  as  his 
security  until  he  received  the  money  ;  but  it  may  be 
answered  that,  according  to  the  other  view,  the  slight- 
est default  on  the  part  of  the  plaintiff  would  have 
prevented  his  recovering  anything  for  what  he  had 
already  done  under  the  contract.  Similar  observationv 
may  be  made  upon  Kane  v.  Hood  ^  ancl  Beecher  v.  Con 
radt ;  ^  for  in  each  of  those  cases  the  plaintiff  was  coi 

1  8  T.  R.  3G6,  Cas.  on  Coiitr.  732. 

2  13  Pick.  281,  Cas.  on  Contr.  760. 
«  3  Kern.  108,  Cas.  on  Contr.  767. 


176  DEPENDENT   AND   INDEPENDENT 

fessedly  entitled  to  receive  more  than  half  of  the  pur- 
chase-money long  before  the  time  arrived  for  him  to 
convey  the  land  ;  and  though  the  actual  decision  in 
each  case  was  in  favor  of  the  defendant,  yet  the  effect 
of  it  was  that  the  plaintiff  might  have  refused  to 
convey  the  land  until  he  received  the  whole  of  the 
purchase-money,  merely  because  the  date  fixed  for 
conveying  the  land  was  also  the  date  fixed  for  paying 
the  last  instalment  of  the  purchase-money.  In  each 
case,  therefore,  the  court  implied  mutual  dependency 
in  favor  of  inequality.  It  is  true  that  the  plaintiff 
in  each  case  had  made  the  conveyance  of  the  land 
expressly  conditional  upon  the  payment  of  the  whole 
of  the  purchase-money ;  but  the  decision  can  derive 
no  support  from  that  fact. 

137.  Though  only  two  acts  can  be  mutually  depen- 
dent, yet  there  may  be  as  many  mutual  dependencies 
in  a  contract  as  there  are  acts  to  be  performed  by  each 
party  ;  and  tlius  every  act  to  be  performed  under  a 
contract  may  be  affected  both  by  a  mutual  and  a  gen- 
eral dependency.  An  instance  of  this  will  be  found 
in  a  contract  for  the  sale  of  goods  to  be  delivered  in 
instalments,  and  paid  for  as  they  are  delivered ;  for 
the  delivering  of  each  instalment  and  the  paying  for 
it  will  be  mutually  dependent  acts,  an3  there  will  also 
be  a  general  dependency  affecting  the  whole  contract ; 
and  the  effect  will  generally  be  the  same  wlien  nothing 
is  said  as  to  the  time  of  payment,  for  the  implication 
will  generally  be  that  each  instalment  is  to  be  paid 
for  when  it  is  delivered  ;  e.  g.  in  Hoare  v.  Rennie  ^  and 
in  Withers  v.  Reynolds.^ 

1  5  H.  &  N.  19,  Cas.  on  Contr.  649. 

2  2  B.  &  Ad.  882,  Cas.  on  Contr.  740. 


COVENANTS   AND   PROMISES.  177 

138.  Whenever  two  mutual  acts  which  are  to  be 
performed  at  the  same  time  do  not  satisfy  all  the  con- 
ditions necessary  to  make  them  mutually  dependent, 
they  are  necessarily  mutually  independent.  So, 
whenever  two  mutual  acts  are  incapable  of  being 
performed  at  the  same  moment,  and  yet  no  reason  can 
be  given  for  requiring  one  to  be  performed  before  the 
other,  each  must  be  performed  at  the  proper  time 
without  regard  to  the  performance  of  the  other.  This 
will  happen  chiefly  when  each  act  consists  in  doing 
(^faciendo),  e.  g.  when  each  of  two  parties  covenants 
or  promises  to  do  something  for  the  promotion  of  an 
object  in  which  both  have  a  common  interest.  For 
example,  in  Ware  v.  Chappel  ^  it  would  be  absurd  to 
say  that  performance  on  either  side  was  a  condition 
precedent  to  performance  on  the  other  side,  for  the 
purposes  of  the  contract  required  that  the  performance 
of  the  plaintiff's  covenant  to  raise  the  soldiers  and 
bring  them  to  the  port,  and  of  the  defendant's  cove- 
nant to  find  shipping  and  victuals  for  them,  should  be 
completed  as  nearly  as  possible  at  the  same  time. 
Each,  therefore,  was  bound  to  proceed  without  waiting 
for  the  other  (108). 

139.  Such  are  the  principles  by  which,  it  is  con- 
ceived, the  subject  of  the  present  title  is  governed; 
and  if  these  principles  had  always  been  recognized 
and  acted  upon,  it  would  not  be  necessary  to  add 
anything  to  what  has  already  been  said.  In  truth, 
however,  the  whole  doctrine  of  the  implied  dependency 
of  mutual  covenants  and  promises  is  a  modern  one. 
Indeed,  not  a  trace  of  it  is  to  be  found  prior  to  the 
time  of  Lord  Mansfield. 

1  Style,  186,  Cas.  on  Contr.  623. 
12 


178       DEPENDENT  AND  INDEPENDENT 

140.  In  early  times  the  question  could  arise  only 
with  reference  to  mutual  covenants,  as  mutual  prom- 
ises were  not  binding  in  law.  As  to  mutual  covenants, 
it  was  well  settled  from  an  early  period  that  they 
were  to  be  deemed  separate  contracts  and  wholly 
independent  of  each  other,  unless  one  of  them  was 
made  expressly  dependent  on  the  other.^  This  gave 
great  importance  to  the  precise  terms  in  which  mutual 
covenants  were  expressed,  and  it  not  unfrequently 
happened  that  a  single  word  turned  the  scale.  Thus, 
if  A  covenanted  with  B  to  give  or  do  something  for 
something  else  which  B  covenanted  to  give  or  do  in 
return,  it  was  commonly  held  that  the  word  "  for " 
made  A's  covenant  dependent  upon  B's.^  And  this 
is  what  was  meant  by  the  common  saying  "  that  the 
word  'pro'  made  a  condition  in  things  executory, "^ 
*.  e.  in  contracts.  Sometimes,  however,  it  was  held  that 
the  word  "  pro  "  made  a  condition  only  when  there  was 
no  mutual  remedy,  i.  e.  in  unilateral  contracts.  This 
view  was  adopted  in  Pordage  v.  Cole,*  and  in  Holder 
V.  Taylor  ^  (where  the  word  was  "  provided,"  a  much 
stronger  word  than  "  pro  ").^  Again,  if  A  covenanted 
with  B  to  give  or  do  something  in  consideration  of 
something  covenanted  to  be  given  or  done  by  B  in 

1  Anon.,  Y.  B.  15  Hen.  VII.  fol.  10  b,  pi.  7,  Cas.  on  Contr.  442  ;  per 
Holt,  C.  J.  in  Thorpe  v.  Thorpe,  12  Mod.  455,  Cas.  on  Contr.  446. 

2  Anon.,  Y.  B.  15  Hen.  VII.  fol.  10  b,  pi.  7,  Cas.  on  Contr.  442 ;  per 
Holt,  C.  J.,  in  Thorpe  v.  Thorpe,  12  Mod.  455,  Cas.  on  Contr.  446 ; 
Shales  v.  Seignoret,  1  Ld.  Raym.  440,  Cas.  on  Contr.  899. 

3  Pordage  v.  Cole,  1  Wms.  Saiind.  319,  Cas.  on  Contr.  625,  626; 
Peeters  v.  Opie,  2  Wms.  Saund.  350,  Cas.  on  Contr.  792,  794. 

4  1  Wms.  Saund.  319,  Cas.  on  Contr.  625. 

5  1  Rol.  Abr.  518,  Cas.  on  Contr.  620. 

6  And  see  Cole  v.  Shallett,  3  Lev.  41,  Cas.  on  Contr.  631 ;  Thompson 
i>.  Noel,  1  Lev.  16,  Cas.  on  Contr.  838. 


COVENANTS   AND   PROMISES.  179 

return,  the  words  "in  consideration  of"  were  lield  to 
make  A's  covenant  dependent  on  B's.^  But  if  B's 
covenant  (and  not  the  performance  of  it)  was  ex- 
pressed to  be  the  consideration  of  A's  covenant,  the 
latter  was  independent  of  the  former.^  And  even  if 
the  terms  of  A's  covenant  left  it  in  doubt  whether  it 
was  in  consideration  of  B's  covenant  or  of  his  per- 
formance, it  seems  that  it  would  be  independent.^  It 
will  be  seen,  therefore,  that  the  dependence  of  one 
mutual  covenant  upon  another  had  to  be  proved  in 
every  case,  without  the  aid  of  any  presumption,  and 
that  it  could  be  proved  only  by  the  words  of  the 
covenant.  As  late  as  1744,  Willes,  C.  J.,  while  ex- 
pressing his  dislike  of  this  view,  admitted  that  it  was 
established  by  so  many  authorities  that  it  was  too  late 
to  overturn  it ;  *  and  accordingly  it  remained  unques- 
tioned until  Lord  Mansfield's  time. 

141.  As  to  mutual  promises,  it  was  no  sooner 
decided  that  such  promises  were  a  sufficient  considera- 
tion for  each  other,  than  it  was  held  to  follow  as  a 
consequence  that  they  were  independent  of  each  other.^ 
This   mistake   seems   to   have  arisen   from   not   dis 

1  Brocas'  Case,  3  Leon.  219,  Cas.  on  Contr.  442  ;  per  Holt,  C.  J.,  in 
Thorpe  v.  Thorpe,  12  Mod.  455,  Cas.  on  Contr.  446. 

2  Brocas'  Case,  3  Leon.  219,  Cas.  on  Contr.  442;  per  Holt,  C.  J.,  in 
Thorpe  v.  Thorpe,  12  Mod.  455,  Cas.  on  Contr.  446. 

3  Caton  V.  Dixon,  1  Rol.  Abr.  415,  pi.  8,  Cas.  on  Contr.  622  (com- 
pare Cas.  on  Contr.  453) ;  Blackwell  v.  Nash,  1  Str.  535,  Cas.  on 
Contr.  631. 

4  Thomas  v.  Cadwallader,  Willes,  496,  Cas.  on  Contr.  458,  461. 

5  Gower  v.  Capper,  Cro.  Eliz.  543,  Cas.  on  Contr.  395  (1507)  ; 
Bettisworth  v.  Campion,  Yelv.  134,  Cas.  on  Contr.  619  (1608) ;  Nicliols 
V  Raynbred,  Hobart,  88,  Cas.  on  Contr.  395  (1615);  Thorpe's  Case, 
March,  75,  Cas.  on  Contr.  622  (1639) ;  Beany  v.  Turner,  1  Lev.  293, 
Cas.  on  Contr.  629  (1070). 


180  DEPENDENT  AND   INDEPENDEN'l 

tinguishing  with  sufficient  care  between  tlie  making 
of  a  promise  and  the  performance  of  it.  Before  the 
establishment  of  mutual  promises,  there  had  not  been 
the  same  necessity  for  making  the  distinction,  as  the 
consideration  for  a  unilateral  promise  is  payment  for 
its  performance  as  well  as  for  the  promise  itself.  In 
case  of  mutual  promises,  however,  the  promise  on  one 
side  is  not  payment  for  performance  on  the  other  side, 
but  the  promise  on  each  side  is  payment  for  the 
promise  on  the  other  side,  and  the  performance  on 
each  side  is  payment  for  the  performance  on  the  other 
side.  To  say,  therefore,  that  the  performances  of 
mutual  promises  are  independent  of  each  other,  be- 
cause the  promises  themselves  are  payment  for  each 
other,  is  worse  than  a  complete  non  sequitur ;  it  is 
supporting  a  proposition  by  a  reason  which  proves  the 
contrary.  However,  the  rule  having  been  established 
that,  in  declaring  on  mutual  promises,  performance  of 
the  plaintiff's  promise  need  never  be  averred,  it 
necessarily  followed  that  one  mutual  promise  could 
never  be  dependent  on  another,  either  expressly  or 
by  implication,  as  mutual  promises  are  always  and 
necessarily  the  consideration  of  each  other.  Such  a 
rule,  if  adhered  to,  was  sure  sooner  or  later  to  place 
the  court  in  a  dilemma;  and  this  came  near  happening 
in  Peeters  v.  Opie,^  where  the  plaintiff  declared  upon 
mutual  promises,  and  yet  it  was  agreed  that  perform- 
ance by  the  plaintiff  was  intended  to  be  a  condition 
precedent  to  performance  by  the  defendant.  The 
court  finally  avoided  deciding  the  question,  but  the 
defendant's  counsel  showed  that  the  fact  of  the  de- 
fendant's promise  being  in  consideration  of  the 
1  2  Wms.  Saund.  350,  Cas.  on  Contr.  792  (1671). 


i 


COVENANTS   AND   PROMISES.  181 

plaintiff's  promise  had  nothing  to  do  with  the  ques- 
tion whether  the  defendant's  promise  was  conditional, 
and  the  same  view  was  clearly  stated  by  Hale,  C.  J.^ 
In  Thorpe  v.  Thorpe  ^  (1701)  the  coui't  was  called  upon 
to  meet  the  question  directly,  for  the  plaintiff  declared 
upon  mutual  promises,  and  yet  the  defendant's  promise 
was  held  to  be  dependent  on  the  plaintiff's.  Instead, 
however,  of  adopting  the  view  of  Lord  Hale,  and 
holding  the  two  things  to  be  perfectly  consistent  with 
each  other.  Holt,  C.  J.,  admitted  the  old  rule  to  its 
fullest  extent,  but  denied  its  applicability  to  the  case 
before  him,  saying  that  it  was  entirely  a  question  of 
intention  whether  the  plaintiff's  promise  or  his  per- 
formance was  the  consideration  of  the  defendant's 
promise.  To  this,  however,  there  were  two  conclusive 
answers:  first,  the  court  only  knew  from  the  declara- 
tion what  was  the  consideration  of  the  defendant's 
promise,  and  the  declaration  expressly  stated  that  it 
was  the  plaintiff's  promise ;  secondly,  if  the  plaintiff's 
performance  had  been  the  consideration,  the  contract 
would  have  been  unilateral,  and  the  defendant  would 
not  have  been  bound  at  all  until  the  plaintiff's  per- 
formance was  completed.  Upon  the  whole,  Lord 
Holt's  elaborate  opinion  left  the  subject  of  the  de- 
pendency of  mutual  promises  in  a  more  embarrassed 
condition  than  ever.  The  question  seems  not  to  have 
attracted  any  further  attention  prior  to  Lord  Mans- 
field's time,  though  the  case  of  Martindale  v.  Fisher  ^ 
shows  that  the  old  rule  was  regarded  as  still  in  full 
force  as  late  as  1745. 

1  Compare  Lea  v.  Exelby,  Cro.  Eliz.  888,  Cas.  on  Contr.  789. 

2  12  Mod.  455,  Cas.  on  Contr.  446. 
8  1  Wils.  88,  Cas.  on  Contr.  632. 


182  DEPENDENT   AND   INDEPENDENT 

142.  There  seems  to  be  no  doubt  that  one  reason 
why  the  doctrine  of  implied  dependency  was  so  slow 
in  establishing  itself  was  that  the  doctrine  of  con- 
current conditions  had  not  yet  obtained  recognition. 
During  the  times  of  which  we  have  been  speaking, 
only  one  kind  of  dependency  between  two  mutual  acts 
was  supposed  to  be  possible,  namely,  that  which  made 
one  a  condition  precedent  to  the  other.  One  act, 
therefore,  could  be  made  expressly  dependent  upon 
another  only  at  the  expense  of  the  latter,  even  though 
the  two  acts  were  of  such  a  nature  that  they  ought  to 
be  performed  together.  Thus,  if  a  buyer  of  goods 
promised  to  pay  for  them  only  upon  delivery,  the  seller 
was  obliged  to  trust  the  buyer  for  the  price,  and  could 
not  insist  upon  payment  being  made  concurrently 
with  the  delivery ;  and  if  the  seller  promised  to 
deliver  the  goods  only  upon  payment  of  the  price,  the 
same  consequence  followed,  mutatis  mutandis}  Even 
if  performance  on  each  side  was  made  expressly  con- 
ditional upon  performance  on  the  other  side,  it  seems 
that  the  consequence  would  have  been  that  each 
party  might  refuse  to  perform  unless  the  other  per- 
formed first.  It  must  be  confessed  that  this  would 
have  been  a  novel  ap[)lication  of  the  maxim,  potior  est 
conditio  defendentis,  but  such  was  the  effect  of  the 
ruling  which  Holt,  C.  J.,  is  reported  to  have  made  in 
Callonel  v.  Briggs.^  Lord  Macclesfield  appears  to 
have  been  the  first  to  recognize  and  act  upon  the 
principle  of  requiring  two  mutual  acts  to  be  performed 
concurrently ;  for  he  applied  it,  as  early  as  1713,  to  a 
covenant  to  pay  the  amount  due  on  a  judgment,  the 

1  Lea  V.  Exelby,  Cro.  Eliz.  888,  Cas.  on  Contr.  789. 

2  1  Salk.  112,  Cas.  on  Contr.  722. 


COVENANTS   AND   PROMISES.  183 

creditor  assigning  the  judgment.^  It  is  true  that  the 
covenant  there  was  unilateral,  but  that  circumstance 
did  not  affect  the  reasons  for  holding  the  condition  to 
be  concurrent  instead  of  precedent.  This  was  followed 
by  Merrit  V.  Rane^  (1721),  which  was  an  action  on 
an  agreement  by  the  defendant  to  transfer  to  the 
plaintiff  6,000?.  of  South-Sea  stock  upon  payment  of 
9,000Z. ;  and  Pratt,  C.  J.,  there  said:  "The  payment 
of  the  money  is  not  a  condition  precedent,  but  a  con- 
current act ;  and  if  the  defendant  had  been  there 
[i.  e.  at  the  South-Sea  House],  the  plaintiff  must  have 
laid  down  his  money,  though  not  so  as  to  part  with  it 
till  transfer ;  and  so  it  was  held  in  the  case  of  Turner 
V.  Goodwin."  These  two  cases,  therefore,  may  fairly 
be  considered  as  having  established  the  doctrine  of 
express  concurrent  conditions. 

143.  The  way  having  thus  been  prepared  for  estab- 
lishing the  doctrine  of  implied  dependency  upon  a 
satisfactory  basis,  a  good  opportunity  was  afforded  by 
the  case  of  Kingston  v.  Preston^  (1773).  The  de- 
fendant's covenant  upon  which  the  action  was  brought 
was  absolute  in  terms,  but  the  deed  also  contained  a 
covenant  on  the  part  of  the  plaintiff,  and  justice 
clearly  required  that  the  latter  should  be  performed 
first  (127).  Lord  Mansfield,  in  delivering  the  judg- 
ment of  the  court,  divided  mutual  covenants  into  three 
classes,  viz. :  first,  those  which  are  mutually  inde- 
pendent ;  secondly,  those  which  are  subject  to  a 
general  dependency  ;  thirdly,  those  which  are  mutu- 
ally dependent.     He  also  said  "  that  the  dependence 

1  Turner  v.  Goodwin,  Fortescue,  145,  cited  in  Cas.  on  Contr.  904. 

2  1  Strange,  458,  cited  in  Cas.  on  Contr.  806-7. 

3  Cited  in  Jones  v.  Barkley,  Dougl.  684.  Cas.  on  Contr.  901,  905 


184       DEPENDENT  AND  INDEPENDENT 

or  independence  of  covenants  was  to  be  collected  from 
the  evident  sense  and  meaning  of  tlie  parties,  and 
that,  however  transposed  they  might  be  in  the  deed, 
their  precedency  must  depend  on  the  order  of  time  in 
which  the  intent  of  the  transaction  requires  their 
performance."  Accordingly,  it  was  held  that  per- 
formance by  the  plaintiff  was  a  condition  precedent 
to  performance  by  the  defendant,  i.  e.  that  the  de- 
fendant's covenant  was  dependent  upon  the  plaintiff's 
by  implication.  Lord  Mansfield  did  not  intimate  that 
he  was  deciding  contrary  to  what  had  been  held  for 
law  from  time  immemorial,  but  such  was  the  fact. 
The  decision  has  been  uniformly  acquiesced  in,  how- 
ever, from  that  day  to  this,  and  hence  in  effect  it 
overruled  a  long  line  of  decisions,  and  established  the 
doctrine  of  general  dependency  by  implication  as  it 
exists  at  the  present  day.  Nor  is  there  any  doubt 
that  Lord  Mansfield  intended  to  lay  down  the  same 
doctrine  as  to  mutual  dependency,  i.  e.  that  it  may 
exist  by  implication,  especially  as  such  a  dependency 
is  very  seldom  created  exj^ressly.  His  language,  how- 
ever, was  less  explicit  in  regard  to  mutual  dependency, 
and,  as  the  case  did  not  involve  the  doctrine,  further 
decisions  were  required  to  establish  it.  The  question 
was  directly  presented  for  the  first  time  (so  far  as 
appears  from  reported  cases)  in  Goodisson  v.  Nunn  ^ 
(1792),  where  there  were  mutual  covenants  for  the 
purchase  and  sale  of  real  estate,  each  absolute  in 
terms,  but  each  to  be  performed  on  the  same  day  ; 
and  the  plaintiff  having  neither  performed  nor  offered 
to  perform  on  his  part,  it  was  held  that  he  was  not 
entitled  to  recover.  The  defendant,  indeed,  pleaded 
1  4  T.  R.  761,  Cas.  on  Contr.  723. 


COVENANTS  AND  PROMISES  185 

upon  the  theory  that  performance  by  the  plaintiff  was 
a  condition  precedent,  but  the  decision  was  based  on 
the  insufficiency  of  the  declaration ;  and  if  the  latter 
had  alleged  that  the  plaintiff  offered  to  perform  and 
the  defendant  refused,  the  decision  would  have  been 
in  the  plaintiff's  favor.  The  plaintiff's  counsel  cited 
Caton  V.  Dixon, 1  Pordage  v.  Cole,^  and  Blackwell  v. 
Nash,^  to  prove  that  the  two  covenants  were  mutually 
independent ;  but  Lord  Kenyon  said  the  determina- 
tions in  those  cases  "  outraged  common  sense,"  and 
the  court  unanimously  declared  them  to  be  overruled. 
In  Morton  v.  Lamb^  (1797)  the  same  question  arose 
as  to  mutual  promises,  the  action  being  on  a  contract 
for  the  purchase  and  sale  of  goods.  There  was  also 
the  special  circumstance  that,  while  a  time  and  place 
were  specified  for  delivering  the  goods,  nothing  was 
said  as  to  the  time  or  place  of  paying  for  them  ;  but 
the  court  was  clearly  of  opinion  that,  by  a  plain 
implication,  payment  was  to  be  made  at  the  time  and 
place  specified  for  delivery,  and  hence  that  payment 
and  delivery  were  mutually  dependent  acts.  No 
notice  was  taken  (except  incidentally  by  Lawrence,  J.) 
of  the  old  rule  that  mutual  promises,  being  the  con- 
sideration for  each  other,  are  necessarily  independent ; 
and  therefore  it  may  be  considered  from  this  time  as 
abrogated.  In  Rawson  v.  Johnson^  (1801)  mutual 
promises  for  the  purchase  and  sale  of  goods  were  held 
to  be  mutually  dependent,  though  each  promise  waa 

1  1  Rol.  Abr.  415,  pi.  8,  Cas.  on  Contr.  622. 

2  1  Wnis.  Saund.  319,  Cas.  on  Contr.  625. 

3  1  Str.  535,  Cas.  on  Contr.  631. 

4  7  T.  R.  125,  Cas.  on  Contr.  727. 
~  6  1  East,  203,  Cas.  on  Contr.  805. 


186       DEPENDENT  AND  INDEPENDENT   i-'-A^  i~^  /  H  J, 

absolute  in  terms,  and  no  time  was  appointed  for  the 
performance  of  either.  With  this  ease,  therefore,  the 
doctrine^  of  mutual^  dependency  was  completely  estab 
lished  as  it  has  ever  since  remained. 

144.  In  consequence  of  the  foregoing  changes,  all 
decisions  upon  the  subject  of  the  present  title,  made 
prior  to  the  time  of  Lord  Mansfield,  require  to  be 
revised.  In  Anon.^  performance  by  the  plaintiff  was 
a  condition  precedent  in  both  the  cases  put,  without 
regard  to  the  distinction  stated  (125,  126,  133.)  In 
Brocas'  Case  ^  the  covenants  were  mutually  dependent 
without  reference  to  the  distinction  stated.  In  Thorpe 
V.  Thorpe^  the  promises  were  mutually  dependent,  in- 
stead of  the  plaintiff's  promise  being  a  condition  pre- 
cedent. In  Spanish  Ambassador  v.  Gifford  *  it  seems 
that  performance  by  the  plaintiff  was  a  condition 
precedent,  for  the  reason  stated  in  §  125.  In  Vivian 
V.  Shipping^  it  seems  that  the  payment  of  10^.  by  the 
plaintiff,  and  the  giving  of  a  bond  by  the  defendant, 
were  mutually  dependent  acts.  In  Thorpe's  Case^ 
the  promises  as  stated  were  mutually  dependent.  In 
Caton  V.  Dixon  ">  it  seems  that  the  covenants  were 
mutually  dependent,  while  in  Ware  v.  Chappel  ^  they 
were  mutually  independent,  for  the  reason  stated  in 
§  138.     In    Gibbons    v.    Prewde^  it   seems  that  the 

1  Y.  B.  15  Hen.  VII.  fol.  10  b,  pi.  7,  Cas.  on  Contr.  442. 

2  3  Leon.  219,  Cas.  on  Contr.  442. 
8  12  Mod.  455,  Cas.  on  Contr.  446. 
*  1  Rol.  336,  Cas.  on  Contr.  620. 

6  Cro.  Car.  884,  Cas.  on  Contr.  621. 
<>  March,  75,  Cas.  on  Contr.  622. 

7  1  Rol.  Abr.  415,  pi.  8,  Cas.  on  Contr.  622. 

8  Style,  186,  Cas.  on  Contr.  623. 

9  Hard.  102,  Cas.  on  Contr.  624. 


COVENANTS  AND   PROMISES.  187 

promises  were  mutually  dependent,  though  the  con- 
veyance by  the  plaintiff  would  operate  before  that  by 
the  defendant.  So  in  Beany  v.  Turner  ^  it  seems  that 
the  promises  were  mutually  dependent.  In  Cole  v. 
Shallett^  performance  by  the  plaintiff  was  a  condition 
precedent  to  performance  by  the  defendant  (125) .  In 
Blackwell  v.  Nash  ^  the  covenants  were  mutually  de- 
pendent. In  Martindale  v.  Fisher  *  it  seems  that  the 
promises  were  independent,  for  the  reasons  stated  in 
§  107.  In  Callonel  v.  Briggs  ^  the  promises  were  not 
dependent  by  implication  (118),  but  were  expressly 
made  mutually  dependent.  In  Lea  v.  Exelby^  the 
promises  wei'e  mutually  dependent.  In  Peeters  v. 
Opie  ^  performance  by  the  plaintiff  was  a  condition 
precedent,  for  the  reason  given  in  §  125. 

145.  The  case  of  Pordage  v.  Cole  ^  occupies  a  peculiar 
and  anomalous  position.  Were  it  not  for  certain  com- 
paratively recent  authorities,  there  need  be  no  hesi- 
tation in  saying  that,  by  the  true  construction  of  the 
contract  in  that  case,  the  land  was  to  be  conveyed 
when  the  money  was  paid,  and  hence  that  the  cove- 
nants were  mutually  dependent  by  implication.  No 
other  view  is  reconcilable  with  the  decision  in  Morton 
V.  Lamb,^  where  it  was  held  that  by  implication  the 
money  was  to  be  paid  when  the  goods  were  delivered, 

1  1  Lev.  293,  Cas.  on  Contr.  629. 

2  3  Lev.  41,  Cas.  on  Contr.  63L 
8  1  Str.  535,  Cas.  on  Contr.  631. 
*  1  Wils.  88,  Cas.  on  Contr.  632. 

6  1  Salk.  112,  Cas.  on  Contr.  722. 

6  Cro.  Eliz.  888,  Cas.  on  Contr.  789. 

f  2  Wms.  Saund.  350,  Cas.  on  Contr.  792. 

8  1  Wins.  Saund.  319,  Cas.  on  Contr.  625. 

9  7  T.  R.  125,  Cas.  on  Contr.  727. 


188       DEPENDENT  AND  INDEPENDENT 

Indeed,  Pordage  v.  Cole  is  a  stronger  case  in  favor  of 
mutual  dependency  than  Morton  v.  Lamb,  as  an  in- 
tention to  pay  for  property  in  advance  is  more  im- 
probable than  an  intention  to  sell  on  credit.  Such 
must  also  have  been  the  view  taken  of  Pordage  ■;. 
Cole  in  Goodisson  v.  Nunn,^  or  Lord  Kenyon  would 
not  have  said  that  the  decision  "  outraged  common 
sense."  On  principle,  also,  this  view  seems  to  be 
equally  clear,  whether  regard  be  had  merely  to  the 
intention  of  the  parties  in  the  particular  case,  or  to 
the  general  presumption  in  favor  of  mutual  depend- 
ency. It  is  obvious  that  a  time  was  limited  within 
which  the  money  should  be  paid,  because  the  buyer - 
was  not  ready  to  pay  it  immediately,  and  that  nothing 
was  said  as  to  the  time  for  conveying  the  land,  because 
the  seller  was  ready  to  convey  whenever  the  money 
was  paid.  It  is  evident  also  that  the  j^laintiff  intended 
to  retain  the  title  to  the  property  until  he  got  his 
money ;  yet  by  the  decision  the  defendant  had  an 
absolute  right  to  a  conveyance  the  moment  the  con- 
tract was  made.  Notwithstanding  all  this,  however, 
it  was  held  in  Mattock  v.  Kinglake^  (1839)  that 
Pordage  v.  Cole  was  decided  correctly,  and  mutual 
covenants  were  held  independent  under  similar  cir- 
cumstances. Indeed,  the  decision  in  Mattock  v.  King- 
lake  did  greater  violence  to  the  intention  of  the 
parties,  as  expressed  in  the  contract,  than  in  Pordage 
V.  Cole ;  for  in  the  former  the  buyer,  being  already 
in  possession  of  the  property,  covenanted  to  pay  the 
purchase-money  on  or  before  a  day  named,  with  in- 
terest "  to  the  time  of  the  completion  of  the  purchase." 

1  4  T.  R.  761,  Cas.  on  Contr.  723. 

2  10  Ad.  &  EI.  50,  Cas  on  Contr.  662. 


COVENANTS   AND   PROMISES.  189 

This  showed  conclusively  that  the  parties  intended 
that  the  sale  should  be  completed  when  the  money 
was  paid,  for  they  meant  that  interest  should  be  paid 
until  the  payment  of  the  principal,  and  therefore  they 
must  have  used  the  phrase  "  completion  of  the  pur- 
chase "  to  designate  the  time  when  the  money  would 
be  paid.  In  Wilks  v.  Smith,i  though  the  precise  poin*; 
now  under  consideration  did  not  arise,  yet  an  opinion 
was  expressed  by  Parke,  B.,  and  Rolfe,  B.,  that  the 
seller  was  not  bound  to  convey  until  he  received  his 
money;  and  if  so,  it  followed  a  fortiori  that  the  buyer 
was  not  bound  to  pay  until  he  got  his  deed,  though  it 
is  by  no  means  clear  that  the  court  would  have  so 
held.  Sibthorp  v.  Brunei  ^  contained  an  element  not 
found  in  either  of  the  cases  hitherto  referred  to 
(though  it  is  found  in  Dicker  v.  Jackson  ^),  for  the 
covenant  to  convey  was  in  terms  "  on  payment "  of 
the  purchase-money.  It  was  impossible  therefore  to 
hold  that  the  covenants  were  mutually  independent, 
and  yet  it  was  held  that  the  covenant  to  pay  was 
independent  and  absolute ;  hence  it  must  have  been 
held  that  payment  was  a  condition  precedent.  Yet  it 
is  contrary  alike  to  principle  and  to  precedent  to  hold 
that  the  words  "on  payment"  create  a  condition  pre- 
cedent in  a  contract  for  the  sale  of  property.  Even 
if  the  contract  were  unilateral,  these  words  would 
create  only  a  concurrent  condition  ;  and  surely  they 
cannot  have  a  greater  effect  in  a  bilateral  contract. 
So  far,  therefore,  from  their  furnishing  any  argument 
against  holding  the  covenants  to  be  mutually  depend- 

1  10  M.  &  W.  355,  Cas.  on  Contr.  666. 

2  .3  Exch.  826,  Cas.  on  Contr.  679. 

3  6  C.  B.  103,  Cas.  on  Contr.  676. 


190  DEPENDENT   AND   INDEPENDENT 

ent  in  Sibtliorp  v.  Brunei,  they  furnish  a  strong  argu- 
ment in  support  of  that  view. 

146.  Although  Mattock  v.  Kinglake  and  Sibthorp 
V.  Brunei  professed  to  follow  Pordage  v.  Cole,  they 
can  in  truth  derive  no  support  from  that  case,  but 
must  stand  or  fall  upon  their  own  merits.  The  ques- 
tion in  each  of  them  was  whether  the  covenants  were 
mutually  dependent ;  but  no  such  question  did  or  could 
arise  in  Pordage  v.  Cole.  The  question  in  the  latter 
was  whether  the  word  "  pro  "  made  the  conveyance  of 
the  land  an  express  condition  precedent.  A  decision 
of  this  question  in  the  affirmative  would  have  involved 
deciding  that  the  two  covenants  were  to  be  performed 
at  different  times,  and  hence  could  not  be  mutually 
dependent ;  but  the  decision  of  it  in  the  negative  left 
the  question  of  the  relative  time  for  performing  each 
covenant  untouched.  The  only  reason  given  for  the 
decision  in  the  report  is  that  there  were  mutual  rem- 
edies, i.  e.  that  the  contract  was  bilateral,  and  accord- 
ing to  the  authorities  cited  by  the  defendant's  counsel 
(namely.  Sir  Richard  Pool's  Case,  as  stated  by  Lord 
Coke,  and  "  affirmed  for  good  law  "  by  the  court,  in 
Ughtred's  Case,^  Gray's  Case,^  and  Holder  v.  Taylor,^ 
where  the  much  stronger  word  "  provided  "  was  held 
not  to  make  a  condition  because  there  were  mutual 
remedies),  that  reason  alone  was  decisive.  It  is  true 
that  Lord  Holt  (whose  reasoning  in  Thorpe  v.  Thorpe  * 
made  it  necessary  for  him  to  maintain  that  "  pro " 
made  a  condition  equally  whether  there  were  mutual 

1  7  Rep.  10. 

2  6  Rep.  78,  79,  Cro.  Eliz.  405. 

8  1  Rol.  Abr.  518,  Cas.  on  Contr.  620 
*  12  Mod.  455,  Cas.  on  Contr.  446. 


COVENANTS   AND   PROMISES.  191 

remedies  or  not)  insisted  ^  that  the  true  ground  of  the 
decision  was  that  "  a  day  certain  was  appointed  for 
the  payment "  of  the  money,  no  time  being  appointed 
for  the  conveyance  of  the  land.  This  may  have 
been  an  additional  reason  for  holdmg  that  the  Avord 
"  pro "  did  not  make  the  conveyance  of  the  land  a 
condition  precedent,  as  showing  that  the  money  was 
to  be  paid  by  the  day  named,  whether  the  land  was 
conveyed  or  not,  and  that  the  defendant  "  relied  on 
the  plaintiffs  mutual  promise  for  his  security  ;  "  ^  but 
it  had  no  tendency  to  show  that  the  land  was  not  to 
be  conveyed  till  after  the  money  was  paid,  and  even 
if  it  did  show  that,  the  effect  would  be  (not  that  the 
covenants  would  be  independent,  but)  that  the  pay- 
ment of  the  money  would  be  a  condition  precedent, 
and  this  has  never  been  claimed.  Whether,  therefore, 
regard  be  had  to  the  point  decided,  or  to  the  reasons 
which  have  been  given  for  the  decision,  the  latter  does 
not  touch  the  question  whether  such  covenants  are 
mutually  dependent  at  the  present  day.  If  an  excuse 
be  deemed  necessary  for  insisting  so  strongly  upon 
this  proposition,  it  will  be  found  in  the  fact  that  Mr. 
Serjeant  Williams  has  (inadvertently,  it  seems)  ex- 
pressed a  contrary  view,^  and  has  thus  given  to  the 
case  an  importance  which  it  would  never  otherwise 
have  had.  Indeed,  it  was  rather  the  great  authority 
of  the  learned  Serjeant  than  the  original  decision  in 
Pordage  v.  Cole  that  misled  the  court  in  Mattock  v. 
Kinglake. 

1  12  Mod.  455,  Gas.  on  Contr.  446,  452. 

2  Per  Hale,  C.  J.,  Peeters  v.  Opie,  2  Wms.  Saund.  350,  Gas.  on 
Gontr.  792,  794. 

3  Gas.  on  Gontr.  627,  note,  last  clause  of  rule  1. 


192  COVENANTS   AND    PROMISES. 

147.  Fortunately  more  correct  views  prevailed  in 
the  late  case  of  Marsden  v.  Moore. ^  It  is  true  that 
the  court  attempted  to  distinguish  it  from  Pordage  v. 
Cole,  and  none  of  the  judges  (except  Bramwell,  B.) 
professed  to  impeach  the  authority  of  the  latter ;  but 
the  distinction  relied  upon  was  an  unimportant  one 
(122),  and  the  real  ground  of  the  decision  was  that, 
by  the  true  construction  of  the  contract,  the  two 
promises  were  to  be  performed  at  the  same  time,  and 
therefore  were  mutually  dependent.  It  fairly  opens 
the  way,  therefore,  for  overruling  Pordagev.  Cole  and 
the  cases  which  have  followed  it.^ 

See  tits.  Conditions  ;  Conditions  Precedent  ;  Con- 
current Conditions  ;  Performance  of  Conditions. 

1  4  H.  &  N.  500,  Gas.  on  Contr.  760. 

'  Compare  also  Dunham  v.  Pettee,  4  Seld.  508,  Cas.  on  Contr.  762. 


MUTUAL   CONSENT.  193 


MUTUAL    CONSENT. 


148.  Mutual  consent  is  of  the  essence  of  every 
contract  (as  it  is  of  every  transaction  requiring  tlie 
concurrence  of  two  parties),  and  therefore  it  must 
always  exist,  in  legal  contemplation,  at  the  moment 
when  the  contract  is  made.  It  never,  however,  is  the 
subject  of  direct  allegation  or  proof,  partly  because  it 
is  generally  incapable  of  direct  proof,  and  partly  be- 
cause every  contract  is  made  by  acts  performed.  Proof 
of  the  necessary  acts,  therefore,  is  always  indispensa- 
ble, and  proof  of  them  carries  with  it  presumptive 
proof  of  mutual  consent.  Thus,  in  formal  contracts 
(100,  103),  mutual  consent  is  proved  by  proving  de- 
livery, while  in  consensual  contracts  (ibid.^  the  same 
object  is  accomplished  by  proving  an  offer  and  an  ac- 
ceptance of  it.  If  proof  of  tliese  acts  fails  in  any 
point,  it  will  be  useless  to  prove  that  the  parties  fully 
intended  to  perform  them,  or  even  that  they  sup- 
posed they  had  performed  them,  for  mutual  consent 
alone  is  of  no  avail  in  making  a  contract.  On  the 
other  hand,  the  performance  of  the  acts  will  avail 
nothing,  if  mutual  consent  be  shown  to  be  lacking. 
Therefore,  if  two  separate  instruments  be  drawn  up, 
signed,  and  sealed,  each  of  them  purporting  to  be  a 
contract  between  A  and  B,  and  the  parties,  intending 
to  deliver  one  of  the  instruments,  deliver  the  other 

13 


194  MUTUAL   CONSENT. 

instead  by  mistake,  there  is  no  contract  made  ;  not  as 
to  the  instrument  delivered,  for  want  of  consent;  not 
as  to  the  other  instrument,  for  want  of  delivery.  So, 
in  Routledge  v.  Grant,^  the  plaintiff's  acceptance  of 
the  defendant's  offer  failed  through  his  inadvertently 
changing  a  date,  and  therefore  there  was  no  contract, 
though  the  plaintiff  did  an  act  which  he  declared  and 
supposed  to  be  an  unqualified  acceptance  of  the  offer. 
Again,  in  Raffles  v.  Wichelhaus  ^  there  was  a  complete 
offer,  and  apparently  a  complete  acceptance,  yet  there 
was  a  want  of  mutual  consent  through  a  mistake  as  to 
the  subject  of  the  proposed  sale,  and  hence  there  was 
no  contract. 

149.  Although  the  law  requires  that  the  consent  of 
each  party  shall  continue  from  the  time  when  he  per- 
forms the  act  necessary  on  his  part  for  making  the 
contract  to  the  moment  when  the  contract  is  made, 
yet  it  is  never  necessary  to  prove  that  it  did  so  con- 
tinue ;  for  the  law  presumes  that  it  continues  so  long 
as  the  act  to  which  it  was  incident  remains  in  force. 
An  offer,  therefore,  which  proves  the  consent  of  the 
offerer  when  it  is  made  proves  the  continuance  of 
such  consent  so  long  as  the  offer  continues ;  and  so  it 
is  with  an  acceptance..  Not  only  is  no  proof  required 
of  the  continuance  of  the  consent,  but  no  proof  to  the 
contrary  will  be  admitted,  for  the  presumption  is  con- 
clusive. At  the  moment  of  making  the  contract, 
therefore,  mutual  consent  in  fact  is  not  necessary,  but 
only  in  legal  intendment. 

See  tits.  Offer;  Acceptance  of  Offer;  Revocation 
OF  Offer. 

•  1  4  Bing.  653,  Cas.  on  Contr.  5. 
2  2  II.  &  C.  90G,  Cas.  on  Contr.  89. 


NOTICE.  195 


NOTICE. 


150.  When  a  covenant  or  promise  is  conditional 
upon  the  happening  of  an  event  which  is  not  within 
the  knowledge  of  the  covenantor  or  promisor,  and  of 
which  he  has  no  means  of  informing  himself,  the  cov- 
enant or  promise  will  be  subject  to  the  further  con- 
dition of  notice  being  given  of  the  happening  of  the 
event;  for  until  that  is  done  it  is  not  possible,  in  legal 
contemplation,  for  the  covenant  or  promise  to  be  per- 
formed, and  therefore  the  giving  of  notice  is  a  con- 
dition implied  in  fact.  This  principle  was  recognized 
by  Anderson,  C.  J.,  in  Cole's  Case  ^  (1588),  and  by 
the  court  in  Haverleigh  v.  Leighton  ^  (1610),  and  it 
was  the  ground  of  decision  in  Gable  v.  Morse  ^  (1610), 
in  Holmes  v.  Twist,*  and  in  Henning's  Case.^  The 
decision  in  Vyse  v.  Wakefield  ^  may  be  rested  on  the 
same  principle,  assuming  that  the  court  interpreted 
the  covenant  sued  on  correctly.  Makin  v.  Watkinson "' 
was  also  decided  upon  the  same  principle,  the  defend- 

1  Cro.  Eliz.  97,  Cas.  on  Contr.  961. 

2  Jenk.  Cent.  .311,  Cas.  on  Contr.  963. 
8  1  Bulst.  44,  Cas.  on  Contr.  963. 

*  Hobart.  51,  Cas.  on  Contr.  964. 
s  Cro.  Jac,  432,  Cas.  on  Contr.  965. 
6  6  M.  &  W.  442,  Cas.  on  Contr.  969. 
^  L.  R.  6  Exch.  25,  Cas.  on  Contr.  978. 


1 9b  NOTICE. 

ant  having  no  means  of  informing  himself  when  the 
premises  in  question  needed  repairing.  For  the  same 
reason  it  seems  that  the  plaintiff  was  entitled  to  notice 
in  Thomas  v.  Cadwallader.^  If,  however,  the  happen- 
ing of  the  event  is  within  the  knowledge  of  some  third 
person  designated  in  the  covenant  or  promise,  the 
covenantor  or  promisor  must  take  notice  of  it  at  his 
peril.2  Such  must  be  deemed  the  true  principle  of 
the  decision  in  Bradley  v.  Toder.^  In  Gierke  v.  Child 
of  North wich  *  the  covenant  sued  on  was  not  con- 
ditional upon  the  land  being  measured,  nor  upon  any 
other  event.  If  the  land  did  not  amount  to  forty 
acres,  the  defendant  covenanted  absolutely  ;  if  it  did, 
he  did  not  covenant  at  all  (28).  If  the  covenant 
sued  on  in  Vyse  v.  Wakefield^  applied  only  to  such 
insurance  as  should  be  effected  at  the  office  or  offices 
at  which  the  defendant  should  appear  to  be  examined, 
as  intimated  by  Parke,  B.,^  it  seems  that  the  decision 
cannot  be  supported. 

»  Willes,  496,  Cas.  on  Contr.  458. 

2  Anon.,  Y.  B.  18  Edw.  IV.  fol.  18  a,  pi.  2.3,  Cas.  on  Contr.  960  (1478; , 
Anon.,  Y.  B.  1  Hen.  VII.  fol.  5  a,  pi.  8,  Cas.  on  Contr.  960  (1485) ;  Cole's 
Case,  Cro.  Eliz.  97,  Cas.  on  Contr.  961 ;  Fletcher  v.  Pynsett,  Cro.  Jac. 
102,  Cas.  on  Contr.  961  ;  Haverleigli  v.  Leighton,  Jenk.  Cent.  311, 
Cas.  on  Contr.  963 ;  Beresford  v.  Goodrouse,  1  Kol.  Abr.  462,  pi.  3,  4, 
Cas.  on  Contr.  965  ;  Powle  v.  Haggar,  Cro.  Jac.  492,  Cas.  on  Contr.  9()0  ; 
Jackson  v.  Tliornell,  1  Kol.  Abr.  464,  pi.  20,  Cas.  on  Contr.  906  ;  Anon., 
Lil.  Prac.  Reg.  235,  Cas.  on  Contr.  967  ;  Cutler  v.  Soutiiern,  1  Wnis. 
Saund.  116,  Cas.  on  Contr.  967;  King  v.  Atkins,  1  Sid.  442,  Cas.  oo 
Contr.  968. 

8  Cro.  Jac.  228,  Cas.  on  Contr.  962. 

*  Freem.  254,  Cas.  on  Contr.  969. 

8  6  M.  &  W.  442,  Cas.  on  Contr.  969. 

«  Cas.  on  Contr.  977. 


OFFER.  197 


OFFER. 


151.  An  offer,  as  an  element  of  a  contract,  is  a  pro- 
posal to  make  a  promise.  It  must  be  made  by  the 
person  who  is  to  make  the  promise,  and  it  must  be 
made  to  the  person  to  whom  the  promise  is  to  be 
made.  It  may  be  made  either  by  words  or  by  signs, 
either  orally  or  in  writing,  and  either  personally  or  by 
a  messenger ;  but  in  whatever  way  it  is  made,  it  is 
not  in  law  an  offer  until  it  comes  to  the  knowledge  of 
the  person  to  whom  it  is  made.^  If  made  orally, 
therefore,  the  words  must  be  heard  and  understood  by 
the  offeree,  or  they  will  go  for  nothing.  So  if  made 
by  signs,  the  signs  must  be  seen  and  understood.  If 
made  by  letter,  the  written  words  are  inoperative 
until  the  letter  is  received  and  read ;  but  the  moment 
the  letter  is  received  and  read,  the  offer  takes  effect,  the 
law  supposing  the  offerer  at  that  moment  to  speak 
the  words  of  the  letter  to  the  offeree.^  Whether  this 
intendment  will  be  made  when  the  letter  fails  to  reach 
the   offeree  as  soon  as  it  was  expected  to  reach  him 

1  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125,  135. 

2  Adams  v.  Lindsell,  1  B.  &  Aid.  681,  Cas.  on  Contr.  4 ;  S.  v.  F., 
Cas.  on  Contr.  156,  159-161. 


198  OFFER. 

depends  upon  circumstances.  The  failure  may  be 
attributable  to  the  oflFeree,  or  to  the  offerer,  or  to  the 
mail  service.  In  the  first  case,  it  seems  no  such  in- 
tendment can  be  made ;  in  the  second  case,  it  has 
been  held  that  the  intendment  will  be  made,^  but  it 
would  be  too  much  to  state  this  as  an  absolute  rule. 
In  the  third  case,  the  question  ought  to  turn  on  the 
distinction  (which  will  be  stated  presently  in  another 
connection)  between  a  delay  or  detention  of  a  mail 
and  a  miscarriage  of  a  letter.  The  intendment  in 
question  is  irrespective  of  any  subsequent  change 
of  mind  on  the  part  of  the  offerer,  unless  such 
change  of  mind  has  been  manifested  by  an  act  of 
revocation. 

152.  While  an  offer  remains  in  force,  it  confers 
upon  the  offeree  the  power  to  convert  it  into  a  promise 
by  accepting  it.^  The  offerer,  in  making  his  offer, 
may  state  how  long  it  shall  remain  in  force  ;  and  it 
will  then  remain  in  force  during  the  time  so  stated, 
unless  sooner  revoked.^  In  the  absence  of  any  speci- 
fication by  the  offerer,  an  offer  will  remain  in  force  a 
reasonable  time,  unless  sooner  revoked.  As  to  what 
will  be  a  reasonable  time,  no  uniform  or  positive  rule 
can  be  laid  down.  When  an  offer  is  made  personally, 
it  will  prima  facie  continue  until  the  interview  or 
negotiation  terminates,  and  no  longer.*  If  it  is  made 
by  messenger,  whether  orally  or  in  writing,  it  may 
require  an  answer  to  be  returned  by  the  messenger  or 
it  may  not ;  if  it  does,  it  will  continue  in  force  until 

1  Adams  v.  Linrlsell,  1  B.  &  Aid.  681,  Cas.  on  Contr.  4. 

2  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125,  147. 

.8  B.  &  M.  Railroad  Co.  i'.  Bartlett,  8  Cush.  224,  Cas.  on  Contr.  lOa 
*  Mactier  v.  Fritli,  6  Wend.  103,  Cas.  on  Contr.  77,  84. 


OFFER.  199 

tlie  messenger's  return  ;  if  it  does  not,  no  general  rule 
can  be  laid  down  as  to  how  long  it  will  continue  in 
force.  Where  an  offer  is  made  through  the  mail,  it 
will  by  implication  authorize  an  answer  to  be  returned 
in  the  same  way,  and  hence  the  course  of  the  mails 
will  then  be  one  of  the  elements  to  be  considered  in 
deciding  how  long  svich  an  offer  will  continue  in  force. 
In  commercial  transactions  the  general  rule  is  that  the 
offerer  is  entitled  to  an  answer  by  return  mail ;  but 
this  rule  will  not  apply  in  all  cases,  e.  g.  where  there 
are  several  mails  each  day.  Probably  it  would  be 
held  sufficient  in  all  cases  to  mail  an  answer,  either  in 
time  for  the  return  mail,  or  on  the  same  day  that  the 
offer  is  received  ;  ^  but  it  would  be  too  much  to  say 
that  either  of  these  things  will  be  required  in  all  cases, 
e.  g.  where  an  offer  is  received  late  in  the  day,  and  yet 
there  is  a  return  mail  on  the  same  day.  In  transac- 
tions which  are  not  commercial,  e.  g.  where  an  offer  is 
made  for  the  purchase  or  sale  of  real  estate,  much  less 
promptitude  in  answering  is  required,  and  no  definite 
rule  can  be  laid  down.^  If  an  answer  goes  by  the 
right  mail,  it  will  be  in  time,  whether  the  mail  arrives 
at  the  usual  time  or  not ;  and  the  offer  will  remain 
open  until  the  arrival  of  the  mail,  such  being  the 
presumed  intention  of  the  offerer.^  But  if  an  answer, 
having  been  mailed  in  time,  fails  to  reach  its  destina- 
tion in  time  by  reason  of  miscarriage,  though  the 
miscarriage  may  not  be  at  all  the  fault  of  the  sender, 

1  Dunlop  V.  Higgins,  1  H.  L.  Cas.  381,  Cas.  on  Contr.  21. 

2  See  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125. 

3  Dunlop  V.  Higgins,  1  H.  L.  Cas.  381,  Cas.  on  Contr.  21,  27,  30-31. 
Br.  &  Am.  Tel.  Co.  v.  Colson,  L.  R.  6  Exch.  108,  Cas.  on  Contr.  46, 
52,  per  Bramwell,  B. 


200  OFFER. 

it  is,  it  seems,  his  misfortune ;  for  the  miscarriage  of  a 
letter  differs  from  the  delay  or  detention  of  a  mail, 
and  there  can  be  no  presumption  that  an  .offerer  in- 
tends that  the  duration  of  his  offer  shall  be  affected 
by  the  former  circumstance. 

153.  A  subsequent  letter  from  the  offerer  to  the 
offeree,  referring  to  the  offer  and  treating  it  as  still 
pending,  will  have  the  effect  of  renewing  the  offer, 
though  it  had  already  expired  by  lapse  of  time.  An 
instance  of  this  will  be  found  in  Averill  v.  Hedge. ^ 
It  seems,  also,  that  the  duration  of  an  offer  may  be 
extended  during  its  pendency  without  an  actual  re- 
newal. Thus,  if  the  offeree  write  a  letter,  neither 
accepting  nor  rejecting  the  offer,  but  proposing  to 
hold  it  under  advisement,  and  to  accept  it  upon  the 
happening  of  a  certain  event,  it  seems  that  a  mere 
assent  to  such  proposal  on  the  part  of  the  offerer  will 
amount  to  an  extension  of  the  offer ;  at  least,  there 
seems  to  be  no  other  way  of  sustaining  the  decision  in 
Mactier  v.  Frith,^  for  there  the  offer  was  held  to  be 
continuing  when  it  was  accepted,  though  the  accept- 
ance took  place  more  than  two  months  after  the  offer 
was  received  ;  and  yet  there  had  been  no  renewal  of 
tlie  offer,  for  Mactier  received  only  one  letter  from 
Frith  subsequent  to  the  offer,  and  that  contained  no 
reference  to  the  offer. 

154.  When  no  rule  can  be  found  for  deciding  a 
given  question  as  to  the  duration  of  an  offer,  but  it 
must  be  decided  wholly  upon  its  own  circumstances, 
the  question  seems  to  be  clearly  one  of  fact  for  the 
■jury,  and  not  one  of  law  for  the  court.     If  it  be  said 

1  12  Conn.  424,  Cas.  on  Contr.  90. 

2  6  Wend.  103,  Cas.  on.  Contr.  77. 


OFFER.  201 

that  reasonable  time  is  a  question  of  law,  the  answer 
is  that  it  is  so  only  where  the  court  can  lay  down  a 
rule  applicable  to  a  class  of  cases  including  the  case 
in  question.  Nor  is  it  material  for  this  purpose 
whether  the  offer  be  oral  or  written,  for,  if  it  be 
written,  the  question  is  not  to  be  solved  by  interpret- 
ing or  construing  the  writing;  the  court  has  fully 
performed  that  office  when  it  declares  the  writing  to 
mean  that  the  offer  shall  continue  a  reasonable  time. 
It  seems,  therefore,  that  the  question  was  one  of  fact 
for  the  jury  in  the  following  cases :  Ramsgate  V.  H. 
Co.  V.  Goldsmid  ;  ^  Averill  v.  Hedge  ;  ^  Loring  v.  City 
of  Boston.^ 

155.  In  what  has  been  said  hitherto  upon  the  con- 
tinuance of  an  offer,  it  has  been  assumed  that  the 
offer  contemplates  a  bilateral  contract.  When  the 
contract  is  to  be  unilateral,  the  length  of  time  that 
the  offer  will  continue  in  force  depends  upon  different 
considerations.  The  question  is  no  longer  one  of 
accepting  the  offer  orally  or  by  letter,  but  of  per- 
forming the  consideration.  The  duration  of  such  an 
offer,  therefore,  in  the  absence  of  any  express  limita- 
tion, will  be  measured  by  the  length  of  time  which 
may  be  reasonably  required  for  the  performance  of 
the  consideration.  This  may  depend  upon  the  length 
of  time  which  the  actual  performance  of  the  consid- 
eration will  take,  or  upon  the  time  when  the  perform- 
ance ought  to  begin,  or  upon  whether  the  j^erformance, 
once  begun,  should  be  continued  without  interruption. 
It  is  obvious,  therefore,  that  the  question  must  gen- 

1  L.  R.  1  Exch.  109,  Cas.  on  Contr.  40. 

2  12  Conn.  424,  Cas.  on  Contr.  90. 
8  7  Met.  409,  Cas.  on  Contr.  99. 


202  OFFER. 

erally  be  one  of  fact ;  but  perhaps  one  or  two  rules 
of  law  may  be  laid  down.  Thus,  when  performanco 
of  the  consideration  has  been  begun  in  good  faith, 
it  seems  that  the  offer  will  continue,  in  the  absence  of 
actual  revocation,  until  the  performance  is  either  com- 
pleted or  abandoned  ;  and  a  fortiori  this  will  be  so 
when  the  progress  of  the  performance  is  constantly 
within  the  knowledge  of  the  offerer.  If  the  consider- 
ation is  of  such  a  nature  that  the  offer  constitutes  the 
sole  inducement  to  perform  it,  and  still  more  if  the 
performance  of  the  consideration  inures  to  the  benefit 
of  the  offerer  as  it  progresses,  of  course  the  reasons 
for  holding  the  offer  to  continue  as  stated  above  will 
be  much  strengthened.  It  seems  also  that  the  duration 
of  an  offer  which  contemplates  a  unilateral  contract 
should  be  less  strictly  limited  by  implication  than  one 
which  contemplates  a  bilateral  contract,  for  the  reason 
that,  in  the  former  case,  the  offerer  can  for  the  most 
part  sufficiently  protect  himself  by  revoking  the  offer. 
Lastly,  there  is  one  class  of  offers,  the  duration  of 
which  should,  it  seems,  be  subject  to  no  implied  lim- 
itation, namely,  where  a  reward  is  offered  for  the 
apprehension  and  conviction  of  the  perj)etrator  of  a 
crime.  The  object  of  such  an  offer  is  supposed  to  be 
to  punish  the  criminal,  speedily  if  possible,  but  at  all 
events  to  punish  him.  Mere  lapse  of  time,  therefore, 
cannot  be  supposed  to  affect  the  offer.^  The  question 
decided  in  Loring  r.  Boston  ^  was  different.  The  re- 
ward there  was  not  offered  with  reference  to  any  par- 
ticular crime,  but  with  reference  to  a  class  of  crimes. 
The  crime  in  question  was  not  committed  until  nearly 

1  See  In  the  matter  of  Kelley,  3'J  Conn.  159,  162. 

2  7  Met.  409,  Cas.  on  Contr.  99. 


OFFER.  203 

four  years  after  the  reward  was  offered  •  and  the  effect 
of  the  decision  was  that  the  crime  did  not  come  within 
the  offer ;  not  that  the  offer  had  expired,  but  that  there 
never  had  been  any  offer  as  to  the  crime  in  question. 
If  the  crime  had  been  committed  during  the  time  of 
the  publication  of  the  reward,  the  question  presented 
would  have  been  different,  though  even  then  it  might 
have  been  said  that  prevention  rather  than  punishment 
was  the  object  of  the  reward,  and  therefore  that  it 
differed  from  a  reward  offered  with  reference  to  a 
particular  crime  already  committed. 

156.  In  Ramsgate  V.  H.  Co.  v.  Goldsmid  i  it  was 
held  that  an  application  for  shares  had  expired  before 
the  shares  were  allotted,  more  than  five  months  having 
elapsed  between  the  application  and  the  allotment. 
No  reasons  were  given  for  the  decision  except  the 
length  of  time,  nor  does  the  case  disclose  any  other 
reasons ;  but  it  would  seem  to  have  been  impossible 
to  decide  the  case  intelligently  upon  length  of  time 
alone.  Regularly  the  allotment  would  not  be  made 
until  all  the  shares  had  been  subscribed  for ;  and  though 
it  was  provided  in  this  case  that  the  company  might 
commence  and  carry  on  business  before  the  whole 
number  of  shares  in  the  company  were  subscribed  for 
or  issued,  yet  it  was  only  to  be  "  when,  in  the  judg- 
ment of  the  board,  a  sufficient  number  of  shares  had 
been  subscribed  to  justify  them  in  so  doing."  As  the 
case  shows  nothing  as  to  the  state  of  the  subscriptions, 
it  seems  not  to  contain  sufficient  data  for  deciding 
whether  there  was  or  not  unreasonable  delay  in  making 
the  allotment.     It  would  seem   not  unreasonable  to 

»  L.  R.  1  Exch.  109,  Cas.  on  Contr.  40. 


204  OFFER. 

hold  that  such  an  aj^plication  will  continue  in  force 
until  either  the  allotment  is  made  or  the  project  is 
abandoned,  unless  it  is  actually  revoked  in  the  mean 
time. 

See   tits.   Acceptance   of    Offer  ;    Revocation    of 
Offer  ;  Mutual  Consent. 


PERFORMANCE   OF   CONDITIONS.  205 


PERFORMANCE   OF   CONDITIONS. 


157.  It  is  a  fundamental  principle  of  conditions  that 
the  court  has  no  power  to  modify  them  or  to  dispense 
with  their  complete  performance  or  fulfilment ;  for 
the  exercise  of  such  a  power  would  involve  the  en- 
forcement against  a  party  of  a  covenant  or  promise 
which  he  had  never  made.  In  the  case  of  an  express 
condition  this  principle  is  so  obvious  that  it  is  not 
likely  to  be  lost  sight  of.  Thus,  in  Shadforth  v. 
Higgin  1  it  was  not  claimed  that  the  arrival  of  the 
ship  at  Jamaica  on  the  3d  of  July  was  a  compliance 
with  the  condition  that  she  arrive  by  the  2.5th  of 
June ;  and  hence  the  only  question  was  whether  the 
condition  was  annexed  to  the  entire  promise  to  load 
the  vessel,  or  only  to  the  promise  to  load  her  in 
time  for  the  July  convoy.  So  in  Tidey  v.  Mollett,^ 
where  the  defendant's  promise  to  take  the  house  on 
the  24th  of  June  was  on  the  express  condition  that 
certain  things  be  done  upon  it  by  the  14th  of  June, 
and  the  defendant  pleaded  that  they  were  not  done 
by  that  date,  the  plea  was  clearly  good,  though  it  did 
not  deny  that  they  were  all  done  before  the  24th  of 

1  3  Campb.  385,  Cas.  on  Contr.  482. 

2  33  L.  J.  C.  P.  235,  Cas.  on  Contr.  567. 


t^i 


206  PERFORMANCE   OF  CONDITIONS. 

June.  So,  when  an  express  condition  requires  an  act 
to  be  done  by  a  stranger,  the  covenantee  or  promisee 
must  procure  the  stranger  to  do  the  act  at  his  peril ; 
for  if  he  fails,  it  matters  not  that  it  was  through  no 
fault  of  his.^ 

158.  In  the  case  of  implied  conditions  the  applica- 
tion of  the  foregoing  principle  is  less  obvious,  but  it 
is  equally  certain  ;  for  it  is  immaterial  for  this  pur- 
pose whether  a  covenant  or  promise  expressly  states 
that  its  performance  is  conditional  upon  the  covenantee 
or  promisee  doing  a  certain  thing,  or  whether  the  law 
implies  the  same  thing.  Therefore  an  act  of  God 
will  be  no  excuse  for  the  non-performance  of  an 
implied  condition,  though  it  will  be  an  excuse  for  the 
non-performance  of  the  same  act  regarded  as  a  cov- 
enant or  promise.  Thus,  in  Poussard  v.  Spiers  ^  the 
plaintiff  was  disabled  from  enforcing  the  contract  by 
a  breach  of  the  implied  condition  of  performing  it  on 
his  own  part ;  and  yet  he  would  have  had  a  good 
defence  to  an  action  on  the  contract,  his  failure  to 
perform  having  been  caused  by  the  act  of  God,  i.  e. 
,  by  illness.  So  in  Wells  v.  Calnan  ^  the  plaintiff  was 
unable  to  enforce  the  defendant's  promise  because  in- 
capable of  performing  his  own,  the  two  promises  being 
mutual  and  concurrent  conditions ;  yet  the  fact  of  the 
buildings  having  been  burnt  would  have  been  a  good 

1  Worsley  v.  Wood,  6  T.  R.  710,  Cas.  on  Contr.  472;  Thurnell  i-. 
Balbirnie,  2  M.  &  W.  785,  Cas.  on  Contr.  489 ;  Milner  v.  Field,  5 
Exch.  829,  Cas.  on  Contr.  516  ;  Clarke  v.  Watson,  18  C.  B.  n.  s.  278, 
Cas.  on  Contr.  572  ;  Lamb's  Case,  5  Rep.  23  b,  Cas.  on  Contr.  787; 
More  V.  Morecomb,  Cro.  Eliz.  864,  Cas.  on  Contr.  788  ;  Hesketh  v. 
Gray,  Sayer,  185,  Cas.  on  Contr.  798. 

2  1  Q.  B.  D.  410,  Cas.  on  Contr.  591. 
8  107  Mass.  514,  Cas.  on  Contr.  615. 


PERFORMANCE   OF   CONDITIONS.  207 

defence  to  an  action  on  the  plaintiff's  promise.  So  in 
Storer  v.  Gordon  ^  the  plaintiff  was  exempted  from 
liability  for  not  delivering  the  outward  cargo  by  the 
exception  in  the  charter-party,  but  it  did  not  at  all 
follow  from  that  that  he  could  enforce  the  defendant's 
promise  to  furnish  a  homeward  cargo,  he  not  having 
performed  an  implied  condition  precedent  upon  which 
that  promise  depended.^  Nor  is  there  primarily  any 
difference  between  express  and  implied  conditions  in 
respect  to  the  necessity  of  performing  them  in  strict 
accordance  with  their  terms.  Therefore,  in  Tidey  v. 
Mollett^  the  decision  should  have  been  the  same, 
though  the  contract  had  contained  no  express  con- 
dition. For  the  same  reason  the  cutting  of  the  timber- 
trees  was  fatal  to  the  plaintiff's  action  in  Duke  of  St. 
Albans  v.  Shore,*  though  the  defendant  would  have 
been  obliged  to  pay  their  full  value  if  they  had  been 
left  standing,  and  though  there  was  no  evidence  that 
he  purchased  the  estate  with  any  special  reference  to 
the  timber  on  it.  So  when  a  day  is  fixed  for  the  per- 
formance of  two  covenants  or  promises  which  are 
mutually  dependent,  neither  party  can  maintain  an 
action  against  the  other  unless  he  offers  to  perform  on 
his  ovni  part  on  the  day  fixed,  an  offer  on  the  follow- 
ing day  being  of  no  avail. ° 

159.  Undoubtedly  courts  of  equity  act  upon  a  dif- 
ferent principle  from  the  foregoing  ;  for  they,  rightly 
or  wrongly,  enforce  the  performance  of  a  covenant  or 

1  3  M.  &  S.  308,  Cas.  on  Contr.  639. 

■^  See  Poussard  v.  Spiers,  1  Q.  B.  D.  410,  Cas.  on  Contr.  591,  594. 

3  33  L.  J.  C.  P.  235,  Cas.  on  Contr.  567. 

*  1  H.  Bl.  270,  Cas.  on  Contr.  464. 

*  Dunham  v.  Pettee,  4  Seld.  508,  Cas.  on  Contr.  762. 


208  PERFORMANCE   OF   CONDITIONS. 

promise,  notwithstanding  the  breach  of  an  implied 
condition  by  the  plaintiff,  unless  the  breach  is  one 
which  goes  to  the  essence  of  the  defendant's  covenant 
or  promise  ;  and  therefore,  it  seems,  the  plaintiff  might 
have  had  a  specific  performance  in  the  Duke  of  St. 
Albans  v.  Shore,^  unless  the  trees  had  a  special  and 
fancy  value,  as  for  purposes  of  shade  or  ornament. 
This,  however,  does  not  at  all  impeach  the  correctness 
of  the  principle  stated  in  the  preceding  paragraph. 
Indeed,  the  rule  in  equity  may  be  said  to  prove  the 
rule  at  law ;  for  it  is  constantly  assumed  and  admitted 
in  equity  that  there  is  no  remedy  at  law  in  such  cases, 
and  it  is  upon  that  ground  that  equity  asserts  its 
jurisdiction.  In  other  words,  it  is  an  exclusive,  and 
not  a  concurrent  jurisdiction  that  equity  asserts. 
Moreover,  the  rule  in  equity  differs  from  the  rule  at 
law  because  the  procedure  differs.  Equity  can  give 
relief  on  such  conditions  as  it  sees  fit  to  impose, 
and  therefore  it  can  and  does  make  its  decree  for 
specific  performance,  in  the  cases  now  under  consider- 
ation, conditional  upon  the  plaintiff's  fully  compen- 
sating the  defendant  for  the  bi-each  on  the  plaintiff's 
part.  Equity  also  has  complete  control  over  the  sub- 
ject of  costs ;  and  therefore  it  does  not  follow  that  a 
plaintiff  recovers  costs  against  a  defendant  because  he 
obtains  a  decree  ;  on  the  contrary,  he  may  be  i-equired 
to  pay  costs  to  the  defendant,  and  such  costs  as  will 
fully  indemnify  the  latter  for  the  expenses  of  the  liti- 
gation. In  a  court  of  law,  on  the  other  hand,  a  breach 
of  condition  by  the  plaintiff  must  either  be  fatal  to 
his  action  or  be  totally  disregarded ;  for  if  the  plaintiff 
recovers  at  all,  his  judgment  will  not  be  affected  by 
1  1  H.  Bl.  270,  Cas.  on  Contr.  4G4. 


I 


PERFORMANCE   OF   CONDITIONS.  209 

any  breach  that  he  may  have  committed,  and  he  will 
necessarily  recover  costs.  The  defendant,  therefore, 
besides  being  mulcted  with  costs,  will  confessedly  be 
compelled  to  pay  the  plaintiff  more  than  the  latter  is 
entitled  in  justice  to  receive,  and  take  his  chances  of 
recovering  back  the  excess  by  a  cross-action  ;  and  yet 
the  plaintiff  was  the  first  wrong-doer. 

160.  Breaches  of  implied  conditions  are  divisible, 
however,  into  two  classes,  according  as  they  take  place 
before  any  part  of  the  condition  has  been  performed, 
or  during  the  progress  of  its  performance.  It  has 
been  assumed  hitherto  that  the  breach  belonged  to 
the  former  class,  which  may  be  termed  breaches  in 
limine.  Breaches  of  the  latter  class,  which  may  be 
termed  breaches  after  part-performance,  give  rise  to 
different  considerations  ;  for  if  such  a  breach  disables 
the  party  committing  it  from  suing,  the  result  may 
be  that  he  will  receive  nothing  for  what  he  has  al- 
ready done,  and  that  the  other  party  will  receive  the 
benefit  of  the  part-performance  without  paying  for  it. 
If  the  breach  goes  to  the  essence  of  the  contract,  the 
party  committing  it  cannot  complain  of  this  result ; 
but  if  it  is  slight  and  unimportant,  and  especially  if 
it  happens  after  the  performance  is  nearly  completed, 
he  may  justly  say  that  the  penalty  is  out  of  all  pro- 
portion to  the  wrong.  In  this  connection,  also,  there 
is  an  important  distinction  between  express  and  im- 
plied conditions.  An  express  condition  is  the  creature 
of  the  parties  to  the  contract.  It  cannot,  therefore, 
in  legal  contemplation,  work  any  injustice  to  either  of 
them,  nor  can  it  operate  in  such  a  manner  as  to  take 
either  of  them  by  surprise.  The  court,  not  being  re- 
sponsible for  its  existence,  has  nothing  to  do  with  its 

14 


210  PERFORMANCE   OF  CONDITIONS. 

consequences,  and  has  neither  power  nor  duty  in  con- 
nection with  it  beyond  enforcing  it  according  to  its 
terms.  An  implied  condition,  on  the  other  hand,  is 
the  creature  of  the  court,  and  the  court  is  therefore 
responsible  for  its  consequences.  If  it  is  permitted 
to  work  any  injustice,  the  only  excuse  for  the  court 
is  that  it  is  unavoidable  ;  and  if  it  is  permitted  to 
work  more  injustice  than  it  prevents,  not  even  that 
excuse  is  available,  for,  assuming  it  to  be  true,  it 
shows  that  the  condition  has  no  right  to  exist.  This 
responsibility  rests  upon  the  court,  not  only  because 
an  implied  condition  is  its  creature,  but  because,  being 
its  creature,  the  court  has  the  power  of  moulding  it 
as  the  purposes  of  justice  may  require.  This  power* 
is  not,  indeed,  unlimited,  for  the  court  must  be 
consistent  with  itself  ;  and  therefore,  having  implied 
a  condition,  it  must  apply  to  it  the  principles  which 
belong  to  conditions.  Nor  can  the  court  imply  a  con- 
dition of  a  special  and  modified  kind,  for  that  would 
be  taking  an  unwarrantable  liberty  with  the  terms  of 
the  contract.  But  for  that  very  reason  an  implied 
condition  can  make  no  provision  for  special  and  un- 
expected contingencies,  and  therefore,  if  such  a  con- 
tingency arises,  the  court  is  bound  to  consider  it  as 
unprovided  for  (a  supposition  which  is  inadmissible 
in  case  of  express  conditions),  and  so  to  mould  the 
condition  that  it  will  cause  as  little  hardship  as  pos- 
sible to  either  party. 

161.  Influenced  by  the  foregoing  considerations, 
courts  of  law  have  adopted  the  principles  of  courts 
of  equity  (so  far  as  their  procedure  would  admit  of 
their  doing  so)  in  respect  to  breaches  of  implied  con- 
ditions after  part-performance ;  and  therefore,  if  the 


PERFORMANCE  OF   CONDITIONS.  '211 

breach  goes  to  the  essence,  they  permit  it  to  be  set 
up  as  a  defence,  but  if  it  does  not  go  to  the  essence, 
they  permit  the  plaintiff  to  recover,  and  leave  the 
defendant  to  his  cross-action.  In  the  application  of 
this  rule,  however,  several  distinctions  must  be  borne 
in  mind.  An  action  may  be  brought  upon  a  contract 
{inter  olid)  either  to  enforce  payment  for  what  the 
plaintiff  has  done  under  the  contract,  or  to  recover 
special  damages  against  the  defendant  for  refusing  to 
permit  the  plaintiff  to  perform  the  contract  so  as  to 
become  entitled  to  payment ;  and  in  either  case  the 
plaintiff  may  have  broken  an  implied  condition,  either 
because  the  performance  or  offer  to  perform  upon 
which  he  grounds  his  action  was  not  in  conformity  to 
the  contract,  or  because  he  has  failed  in  the  perform- 
ance of  some  part  of  the  contract  which  is  not  the 
subject  of  the  action,  but  the  performance  of  which 
is  a  condition  precedent  to  the  plaintiff's  right  of 
action ;  and  in  the  first  case  the  breach  may  consist 
either  in  the  plaintiff's  not  having  performed,  or 
offered  to  perform,  all  that  the  contract  required 
him  to  perform,  or  in  his  not  having  done  it  in  the 
time  or  manner  that  the  contract  required ;  and  if 
he  has  performed,  or  offered  to  perform,  less  than 
the  contract  required,  he  may  seek  to  recover  as  if  he 
had  performed,  or  offered  to  perform,  all  that  the 
contract  required,  or  only  in  proportion  to  his  per- 
formance or  offer  to  perform,  and  whether  he  properly 
seeks  to  do  the  one  or  the  other  will  depend  upon 
whether,  by  the  terms  of  the  contract,  he  is  to  be 
paid  a  fixed  amount  or  at  a  certain  rate.  Each  of 
these  cases  requires  separate  notice. 

162.    First.   When  the  plaintiff's  breach  consists  in 


212  PERFORMANCE   OF   CONDITIONS. 

not  doing,  or  offei'ing  to  do,  all  that  the  contract  re- 
quires, and  the  amount  that  he  is  to  receive  as  payment 
is  absolutely  fixed,  it  seems  that  the  breach  will  ne- 
cessarily go  to  the  essence  as  matter  of  law ;  for  the 
defendant  can  say  that  he  has  not  performed  on  his 
part  because  the  plaintiff  has  not  rendered  the  equiv- 
alent agreed  upon,  and  that  is  a  good  defence.  If 
payment  is  to  be  made  in  money,  it  is  clear  that  there 
can  be  no  debt  until  the  whole  of  the  quid  pro  quo 
is  received,  and  if  the  payment  consists  in  something 
else  than  money,  the  principle  is  the  same.  This 
principle  seems  to  have  been  decisive  against  the 
plaintiff  in  Poussard  v.  Spiers,^  for  the  plaintiff's  wife 
clearly  did  not  earn  her  salary  during  the  four  days 
that  she  was  unable  to  sing,  and  therefore  it  was  not 
material  that  the  breach  was  after  part-performance. 
On  the  other  hand,  in  Fillieul  v.  Armstrong,^  consid- 
ering the  nature  of  the  engagement,  the  plaintiff's 
two  days'  absence  was  not  a  failure  to  perform  an 
integral  part  of  the  service  contracted  for,  and  it 
would  not  have  prevented  his  recovering  his  year's 
salary  as  a  debt.  So  in  Bettini  v.  Gye^  the  breach 
was  after  part-performance,  as  performance  of  the 
negative  part  of  the  plaintiff's  contract  began  Jan. 
1,  1875,  but  it  did  not  come  within  the  principle  stated 
above,  as  it  consisted  in  not  attending  rehearsals  before 
the  salary  began. 

163.  Secondly.  Even  if  the  amount  that  the  plain- 
tiff is  to  receive  in  payment  is  not  fixed,  but  only  the 
rate  of  payment,  it  seems  that  a  failure  by  the  plaintiff 

M  Q.  B.  D.  410,  Cas.  on  Contr.  591. 

2  7  Ad.  &  El.  557,  Cas.  on  Contr.  657. 

3  1  Q.  B.  D.  18.3,  Cas.  on  Contr.  717. 


PERFORMANCE   OF   CONDITIONS.  213 

to  do  or  to  offer  to  do  all  that  the  contract  requires 
will  be  a  breach  going  to  the  essence,  if  it  is  a  breach 
of  condition  at  all ;  for  such  a  contract  either  means 
that  the  plaintiff  is  to  be  paid  at  the  rate  fixed  for 
what  he  does,  whether  it  be  much  or  little  (in  which 
case  there  is  no  breach  of  condition),  or  it  means  that 
he  is  to  be  paid  for  doing  all  that  the  contract  requires, 
if  he  is  paid  anything ;  in  which  case  the  contract 
will  not  differ  in  substance  from  that  stated  in  the 
preceding  paragraph.  It  seems,  moreovei',  that  the 
latter  will  be  the  true  interpretation,  unless  the  con- 
tract contains  something  special  to  indicate  the  con- 
trai'y.  Fixing  a  rate  of  payment  is  presumptively 
no  more  than  agreeing  upon  a  rule  for  ascertaining 
the  amount  to  be  paid  ;  and  the  reason  for  it  generally 
is,  that,  when  the  contract  is  made,  there  is  no  way, 
or  no  convenient  way,  of  measuring  accurately  what 
the  plaintiff  is  to  perform.  Thus,  in  Tully  v.  Howling  ^ 
the  contract  was  for  twelve  months'  service  of  the 
"  Conquest "  in  carrying  coals  from  Sunderland  to 
London  at  the  rate  of  7s.  per  ton,  the  twelve  months 
beginning  to  run  on  the  9th  of  April ;  and  as  the 
vessel  was  not  ready  to  begin  the  service  until  the  17th 
of  June,  the  breach  necessarily  went  to  the  essence, 
though  it  was  also  in  limine.  If  the  true  construction 
of  the  contract  had  been  that  the  service  was  to  con- 
tinue 12  months  whether  it  began  on  the  9th  of  April 
or  not,  the  breach  would  have  been  merely  in  the  time 
of  performance,  and  hence  it  would  have  come  within 
the  principle  to  be  stated  presently.  Moreover,  as  the 
charterer  was  not  bound  to  employ  the  vessel  except 
for  the  entire  period  contracted  for,  so  the  owner  was 
1  2  Q.  B.  D.  182,  Cas.  on  Contr.  595. 


21't  PERFORMANCE   OF   CONDITIONS. 

not  bound  to  let  the  vessel  serve  except  on  the  same 
terms.  Therefore,  in  Bradford  v.  Williams,^  the  ves- 
sel having  been  chartered  to  carry  coals  at  2s.  6d.  per 
ton  from  May,  1871,  to  the  end  of  March,  1872,  and 
the  charterer  having  in  effect  refused  to  employ  her 
during  September,  1871,  the  breach  necessarily  went 
to  the  essence.  The  case  of  Ritchie  v.  Atkinson  ^ 
was  decided  upon  the  ground  that,  by  the  true  con- 
struction of  the  contract,  the  receiving  of  a  full 
cargo  was  not  a  condition  precedent  to  recovering 
freight  for  the  cargo  actually  carried ;  and  though 
it  is  difficult  to  support  this  construction,  it  seems 
that  the  decision  cannot  be  sustained  upon  any  other 
ground. 

164.  Thirdly.  When  the  plaintiff  performs  or  offers 
to  perform  all  that  the  contract  requires,  but  not  at 
the  time  or  in  the  manner  required,  there  appears  to 
be  a  legal  presumption  that  the  breach  does  not  go 
to  the  essence,^  and  therefore  the  plaintiff  need  make 
no  averment  as  to  the  time  or  manner  of  his  perform 
ance,  but  the  burden  is  on  the  defendant  both  to  show 
that  there  has  been  a  breach  and  that  it  goes  to  the 
essence.  Accordingly  it  must  be  assumed  that  the 
breach  did  not  go  to  the  essence  in  tlie  following 
cases :  Constable  v.  Cloberie,*  Cole  v.  Shallett,°  Terry 
V.  Duntze,^  Bornmann  v.  Tooke,'^  Stavers  v.  Curling,*^ 

K/'  1  L.  R.  7  Excli.  269,  Cas.  on  Contr.  588. 

2  10  East,  295,  Cas.  on  Contr.  848. 

8  Cock  V.  Curtoys,  1  Wms.  Saund.  (6th  ed.)  320  c,  n.  (b). 
*  Palm.  397,  Cas.  on  Contr.  837. 
»  3  Lev.  41,  Cas.  on  Contr.  631. 
«  2  H.  Bl.  389,  Cas.  on  Contr.  634. 
1  1  Camp.  377,  Cas.  on  Contr.  847. 
8  3  Bing.  N.  C.  355,  Cas.  on  Contr.  876. 


PERFORMANCE   OF   CONDITIONS.  215 

Dicker  v.  Jackson,^  Seeger  v.  Duthie.^  In  Bornmann 
V.  Tooke  3  the  words  "  the  captain  must  sail  with  the 
first  favorable  wind,"  &c.,  seem  to  have  created  an 
express  condition  (33),  and  if  so,  the  ruling  of  Lord 
Ellenborough  cannot  be  sustained.  In  Davidson  v. 
Gwynne  '^  the  failure  to  sail  from  London  with  the 
first  convoy  did  not  go  to  the  essence  ;  and  the  failure 
to  deliver  the  homeward  cargo  in  like  good  order  and 
well  conditioned  as  when  the  same  was  shipped  was 
not  a  breach  of  any  condition  in  the  charter-party, 
either  express  or  implied,  but  only  of  a  stipulation  in 
the  bill  of  lading,  —  a  separate  contract.  The  right 
and  true  delivery  of  the  homeward  cargo  was  indeed 
both  an  express  and  an  implied  condition  of  the  cov- 
enant to  pay  freight,  but  that  condition  had  been 
complied  with.  In  Freeman  v.  Taylor  ^  the  breach, 
though  committed  during  the  outward  voyage,  affected 
the  homeward  voyage  also  by  postponing  the  time  of 
its  commencement.  In  Clipsham  v.  Vertue,*^  Tarra- 
bochia  v.  Hickie,"  and  MacAndrew  v.  Chappie,^  the 
breaches  were  in  limine,  and  hence,  it  seems,  those 
cases  should  have  been  decided  in  the  defendant's 
favor,  whether  the  breaches  went  to  the  essence  or 
not.^  In  Clipsham  v.  Vertue  it  was  not  disputed  that 
the  words   "  then  bound  to  Nantes "  amounted  to  a 

1  6  C.  B.  103,  Cas.  on  Contr.  676. 

2  29  L.  J.  C.  P.  253,  30  L.  J.  C.  P.  65,  Cas.  on  Contr.  691. 
8  1  Campb.  377,  Cas.  on  Contr.  847. 

4  12  East,  381,  Cas.  on  Contr.  865. 
6  8  Bing.  124,  Cas.  on  Contr.  483. 
6  5  Q.  B.  265,  Cas.  on  Contr.  670. 
•?  1  H.  &  N.  183,  Cas.  on  Contr.  681. 

8  L.  R.  1  C.  P.  643,  Cas.  on  Contr.  706. 

9  See  Lowber  v.  Bangs,  2  Wall.  728. 


216  PERFORMANCE   OF   CONDITIONS. 

stipulation  to  sail  to  Nantes  direct ;  which  the  vessel 
confessedly  did  not  do.  In  Tarrabochia  v.  Hickie  the 
plaintiff  committed  a  breach  in  limine  in  not  having 
His  ship  tight,  stanch,  and  strong  when  she  sailed 
from  Fiume,  and  also  (semble)  in  not  setting  sail  from 
there  with  all  convenient  speed.  In  MacAndrew  v. 
Chappie  the  plaintiff  committed  a  breach  in  limine 
in  sailing  from  Newcastle  when  the  ship  "  was  not 
complete  and  ready  for  the  chartered  voyage,"  and 
also  in  sailing  for  London  instead  of  Alexandria. 
In  Hoare  v.  Rennie  ^  the  breach  was  in  limine^  and 
therefore  it  is  unnecessary  to  inquire  whether  or 
not  it  sufficiently  appeared  upon  the  pleadings  that  it 
went  to  the  essence.  The  court  has  been  criticised 
by  high  authority  ^  for  confining  itself  to  the  question 
whether  the  defendants  were  entitled  to  reject  the 
iron  actually  tendered  to  them ;  but  that  question 
seems  to  have  been  decisive  of  the  whole  case.  If  the 
tender  was  not  good,  it  was  because  the  plaintiffs  had 
already  broken  the  contract  by  not  shipping  the  re- 
quired amount  of  iron  in  the  month  of  June.  In 
other  words,  if  the  defendants  were  not  bound  to  re- 
ceive the  iron  tendered  (which  was  in  entire  con- 
formity to  the  contract  so  far  as  it  went),  it  was 
because  they  were  not  bound  to  receive  the  June 
instalment  at  all ;  and  then  it  follows,  from  what  is 
stated  in  the  preceding  paragraph,  that  they  were  not 
bound  to  receive  the  subsequent  instalments,  though 
they  should  be  in  conformity  to  the  contract.  To 
have  compelled   them   to   do   so  would  have  been  to 

1  5  H.  &  N.  19,  Cas.  on  Contr.  540. 

2  See  Jonassohn  v.  Young,  4  Best  &  S.  296,  Cas.  on  Contr.  703 ; 
and  Simpson  v.  Crippin,  L.  R.  8  Q.  B.  14,  Cas.  on  Contr.  710. 


PERFORMANCE   OF   CONDITIONS.  217 

substitute  for  the  contract  for  667  tons  of  iron  another 
contract  for  three  quarters  of  that  amount.  Indeed, 
upon  the  same  principle,  the  defendants  might  have 
been  compelled  to  receive  the  last  instalment,  though 
the  plaintiffs  had  refused  to  deliver  either  of  the  pre- 
ceding instalments.  It  is  a  mistake  to  suppose  that 
there  was  in  any  sense  a  separate  contract  for  each 
instalment.  There  was  but  one  contract  for  the  pur- 
chase and  sale  of  "  about  667  tons  "  of  iron  ;  and  the 
stipulations  in  regard  to  delivery  related  merely  to  its 
performance.  There  is  no  more  reason  for  saying  that 
each  instalment  constituted  a  separate  contract  than 
there  is  for  saying,  in  the  case  of  contracts  which  in 
their  nature  require  the  performance  of  several  suc- 
cessive acts,  that  each  act  constitutes  a  separate  con- 
tract. If  Hoare  v.  Rennie  was  rightly  decided,  it 
must  follow  that  the  decision  in  Simpson  v.  Crippin  ^ 
was  erroneous ;  for  the  fact  that  the  plaintiffs  in  the 
latter  were  the  buyers  instead  of  the  sellers  was  not 
material,  and  though  there  was  in  the  latter  a  part- 
performance,  it  will  be  seen  presently  that  it  was  not 
of  a  nature  to  raise  any  equity  in  the  plaintiffs'  favor. 
Indeed,  the  learned  judges  who  decided  Simpson  v. 
Crippin  confessed  their  inability  to  distinguish  it  from 
Hoare  v.  Rennie. 

165.  The  rule  that  a  breach  merely  as  to  the  time 
or  manner  of  performance  does  not  go  to  the  essence, 
being  founded  upon  the  supposed  intention  of  the 
parties  to  the  contract,  will  give  way  to  any  clear 
expression  of  intention  to  the  contrary.  If,  therefore, 
a  building  contract  require  the  work  to  be  completed 

1  L.  R.  8  Q.  B.  14,  Cas.  on  Contr.  710. 


'ZIS  PERFORMANCE   OF   CONDITIONS. 

by  such  a  day,  and  declare  that  time  shall  be  of  the 
essence  of  the  contract,  the  effect  will  be  the  same 
as  if  the  obligation  to  pay  for  the  work  were  expressly 
conditional  upon  its  being  completed  by  the  day 
named. ^ 

166,  Fourthly.  When  the  breach  of  condition  re- 
lates to  a  part  of  the  contract  which  is  not  the  subject 
of  the  action,  it  may  consist  either  in  a  failure*  to  per- 
form, or  in  the  time  and  manner  of  performance.  If 
the  latter,  there  will  be  a  presumption  of  law  that  it 
does  not  go  to  the  essence  ;  if  the  former,  there  will, 
it  seems,  be  no  such  presumption ;  and  therefore  the 
plaintiff,  as  he  cannot  aver  performance,  must  show 
that  his  failure  to  perform  does  not  go  to  the  essence. 
Accordingly,  in  Freeman  v.  Taylor-  there  was  a  pre- 
sumption of  law  that  the  deviation  committed  by  the 
plaintiff  during  the  outward  voyage  did  not  go  to 
the  essence,  but  that  presumption  was  overcome  by 
the  verdict  of  the  jnry.  On  the  other  hand,  in  Storer 
V.  Gordon  ^  the  plaintiff  ought  to  have  shown  in  his 
declaration  that  his  failure  to  deliver  the  outward 
cargo  did  not  go  to  the  essence,  and  not  having  done 
so,  it  seems  that  the  decision  should  have  been  against 
him.  The  defendant  may  have  relied  upon  the  out- 
ward cargo  to  furnish  the  means  to  procure  the  home- 
ward cargo,  and  if  so,  thei'e  could  be  no  doubt  that 
the  breach  went  to  the  essence.  The  decision  in 
Fothergill  v.  Walton*  was  clearly  erroneous,  for  not 
-  only  was  the  breach  in  limine,  but  the  charter-party 

1  Munro  v.  Butt,  8  EI.  &  Bl.  738. 

2  8  Ring.  124,  Cas.  on  Contr.  483. 

8  3  M.  &  S.  308,  Cas.  on  Contr.  639. 
♦  8  Taunt.  576,  Cas.  on  Contr.  645. 


PERFORMANCE   OF   CONDITIONS.  219 

left  no  room  to  doubt  that  the  breach  went  to  the 
essence. 

167.  It  has  been  assumed  hitherto  that  part-per- 
formance of  a  contract  by  one  party  inures  to  the 
benefit  of  the  other  party,  and  that  this  benefit  will 
be  obtained  for  nothing  if  a  subsequent  breach  by 
the  former  enables  the  latter  to  put  an  end  to  the 
contract.  Neither  of  these  propositions,  however,  is 
necessarily  true.  P'irst,  performance  by  one  party  may 
not  inure  to  the  benefit  of  the  other  until  it  is  com- 
pleted and  accepted  by  the  latter,  e.  g.  in  a  contract 
for  the  purchase  and  sale  of  a  thing  to  be  made  to 
order,  where  the  title  remains  in  the  seller  until 
the  thing  is  completed  and  accepted  by  the  buyer. 
Secondly,  there  may  be  a  part-performance  which  is 
of  no  benefit  to  either  party.  Thus,  if  a  vessel  be 
chartered  to  go  in  ballast  from  A  to  B,  and  there 
receive  a  cargo,  the  part-performance  which  consists 
in  going  to  B  will  be  of  no  benefit  to  the  charterer  if 
he  does  not  load  the  vessel,  and  it  may  be  a  positive 
injury  to  the  owner,  as  the  vessel  may  be  worth  less 
at  B  than  at  A.  Thirdly,  a  part-performance  may 
have  been  fully  paid  for,  or  (what  is  the  same  thing 
in  effect)  payment  for  it  may  be  due  by  the  terms  of 
the  contract,  whether  there  is  any  further  performance 
or  not.  In  the  first  of  these  cases  there  seems  to  be 
no  ground  for  saying  generally  that  part-performance 
will  raise  any  equity  in  favor  of  the  party  performing  ; 
and  therefore  the  thing  contracted  for  may  be  rejected 
if,  when  completed,  it  does  not  conform  to  the  con- 
tract. In  the  second  case,  Freeman  v.  Taylor  ^  is  an 
authority  for  saying  that  part-performance  may  raise 
»  8  Bing.  124,  Cas.  on  Conlr.  483. 


220  PERFORMANCE   OF   CONDITIONS. 

an  equity.  Indeed,  Freeman  v.  Taylor  is  a  stronger 
case  than  the  one  put,  supra,  for,  though  the  outward 
voyage  there  inured  to  the  benefit  of  the  charterer, 
yet  it  had  been  fully  paid  for.  In  the  third  case,  a 
part-performance  seems  clearly  to  raise  no  equity. 
Moreover,  when  the  only  performance  by  one  party 
that  inures  to  the  benefit  of  the  other  consists  in  the 
payment  of  money,  it  seems  that  a  part-performance 
by  the  former  will  not  raise  any  equity  in  his  favor , 
for  it  will  either  be  a  payment  for  what  he  has  already 
received,  or  it  will  be  a  payment  in  advance,  and  in 
the  latter  case,  if  the  expected  consideration  is  not 
received,  the  money  may  be  recovered  back.  There- 
fore the  part-performance  in  Bradford  v.  Williams  ^ 
and  in  Simpson  v.  Crippin  ^  did  not  aid  the  plaintiffs. 
The  foregoing  rules  are  to  be  taken,  however,  only  as 
illustrations  of  the  more  general  rule  that  a  part-per- 
formance, in  order  to  raise  an  equity  in  the  plaintiff's 
favor,  must  substantially  change  his  position  to  his 
own  detriment  and  to  the  defendant's  benefit,  or,  if 
not  to  the  defendant's  benefit,  at  least  to  his  own 
detriment.  It  seems,  therefore,  that  the  slightest 
breach  of  condition  will  authorize  the  throwing  up 
of  a  contract  whenever  it  can  be  done  without  putting 
the  plaintiff  in  any  worse  position  substantially  than 
he  would  be  in  if  the  contract  had  not  been  made ; 
e.  g.  if  there  has  been  only  a  slight  and  unsubstantial 
(still  more  if  only  an  illusory)  part-performance. 

168.  The  doctrine  that  a  breach  after  part-perform- 
ance is  not  a  defence  unless  it  goes  to  the  essence  doea 
not  give  a  party  a  right  to  commit  a  breach  because  it 

1  L.  R.  7  Ex-ch.  259,  Cas.  on  Contr.  588. 

2  L.  R.  8  Q.  B.  14,  Cas.  on  Contr.  710. 


PERFORMANCE   OF   CONDITIONS.  221 

does  not  go  to  the  essence  ;  it  merely  excuses  the 
breach  to  the  extent  just  stated  after  it  has  been 
committed.  Therefore  an  offer  or  tender  of  perform- 
ance which  in  itself  is  a  breach  of  the  contract  (though 
not  a  breach  going  to  the  essence)  will  never  be  of 
any  avail,  whether  there  has  been  a  part-performance 
or  not.  Hence,  in  Bradford  v.  Williams,^  the  plain- 
tiff's refusal  to  load  the  vessel  in  September  in  the 
manner  required  by  the  charter-party  had  the  same 
effect  that  a  refusal  to  load  her  at  all  would  have 
had,  and  that  too  whether  the  plaintiff  had  already 
partly  performed  the  contract  or  not. 

169.  As  to  what  will  constitute  performance  of  a 
condition,  a  distinction  must  be  observed  between  the 
performance  of  physical  acts  and  the  legal  effect  of 
such  acts  when  performed.  This  distinction  is  spe- 
cially applicable  to  transfers  of  property  and  rights. 
Generally  such  transfers  can  be  made  only  by  the 
performance  of  certain  prescribed  physical  acts,  and 
yet  other  facts  must  concur  to  render  the  physical 
acts  operative.  Thus,  the  thing  which  an  act  purports 
to  transfer  must  be  in  existence,  and  the  person  per- 
forming the  act  must  have  the  power  to  make  the  trans- 
fer ;  otherwise  the  act  will  necessarily  be  inoperative. 
A  condition,  therefore,  which  requires  a  certain  transfer 
to  be  made  may  mean  either  of  three  things  ;  namel}'^, 
that  the  act  of  transfer  shall  be  performed  if  the  ne- 
cessary facts  exist  to  make  it  effective,  or  that  it  shall 
be  performed  at  all  events,  the  effect  of  it  being  at 
the  risk  of  the  transfei-ee,  or  that  it  shall  be  effectively 
performed,  i.  e.  that  the  ownership  of  a  certain  thing 
or  a  certain  right  or  interest  shall  be  ti-ansferred.  Id 
1  L.  R  7  Exch.  259,  Cas.  on  Contr.  588. 


222  PERFOTvMANCE   OF   CONDITIONS. 

Doughty  V.  Neal  ^  the  defendant  attributed  to  the  con- 
dition the  first  of  these  meanings,  but  the  court  prop- 
erly decided  that  the  second  was  its  true  meaning.  In 
an  ordinary  contract  for  the  purchase  and  sale  of 
property,  however,  the  term  transfer  (or  any  term 
of  equivalent  import)  means  an  effective  transfer, 
and,  therefore,  the  performance  of  such  a  contract  on 
the  part  of  the  seller  requires  the  concurrence  of  three 
things ;  namely,  the  existence  of  the  thing  to  be 
transferred,  the  power  in  the  seller  to  transfer  it,  and 
the  act  of  transfer.  If,  therefore,  either  the  first  or 
the  second  of  these  things  be  wanting,  the  buyer  may 
refuse  to  accept  the  third.  Thus,  it  is  familiar  law 
that  the  buyer  may  refuse  to  complete  the  purchase 
if  the  seller  has  not  a  good  title ;  and  the  Duke  of 
St.  Albans  v.  Shore  ^  and  Wells  v.  Calnan  ^  are  instances 
in  which  the  buyer  successfully  refused  to  accept  the 
act  of  transfer  because  of  the  non-existence  of  the 
thing  to  be  transferred.  Whenever,  therefore,  an 
action  is  brought  against  a  buyer  for  refusing  to 
accept  a  conveyance  and  complete  the  purchase,  it  is 
not  sufficient  for  the  plaintiff  to  aver  an  offer  to 
execute  and  deliver  a  deed  in  proper  form,  but  he 
must  make  his  averment  sufficiently  comprehensive 
to  show  that  the  deed,  if  delivered,  would  have  been 
a  complete  performance  of  the  contract  on  his  part. 
In  this  respect  it  seems  that  the  declaration  was  de- 
fective in  each  of  the  cases  just  cited.  Thus,  in  Duke 
of  St.  Albans  v.  Shore,  all  the  averments  in  the  dec- 
laration might  have  been  proved,  notwithstanding  the 

1  1  Wms.  Saund.  216,  Gas.  on  Contr.  792. 

2  1  H.  Bl.  270,  Cas.  on  Contr.  464. 

8  107  Mass.  514,  Cas.  on  Contr.  615. 


PERFORMANCE   OF  CONDITIONS.  223 

cutting  of  the  timber  trees ;  and  yet  the  cutting  of 
the  timber  trees  constituted  a  negative  defence.  So 
in  Wells  v.  Calnan  the  declaration  only  averred  the 
execution  and  tender  of  a  good  and  proper  deed  for 
conveying  and  assuring  to  the  defendant  in  fee  simple 
•"  the  premises  described  in  said  agreement,"  i.  e.  a 
certain  farm  described  by  metes  and  bounds.  It  does 
not  appear  that  the  description  in  the  agreement  made 
any  mention  of  the  buildings  on  the  farm,  and  it  seems 
to  require  some  strainmg  to  say  that  the  issue  upon 
which  the  parties  went  to  trial  embraced  anything 
more  than  the  act  of  transfer. 

170.  In  contracts  for  the  purchase  and  sale  of  real 
estate  there  are  important  differences  between  the 
law  of  England  and  the  law  of  this  country,  as  to 
what  constitutes  performance  by  the  parties  respect- 
ively. Thus,  in  England  the  presumption  is  that  the 
deed  of  conveyance  is  to  be  prepared  by  the  buyer 
and  tendered  to  the  seller  for  execution ;  ^  while  in 
this  country  the  presumption  is  that  it  is  to  be  pre- 
pared by  the  party  who  is  to  execute  it.  Hence,  in 
an  action  by  the  seller,  it  is  only  necessary  in  England 
to  aver  a  readiness  and  willingness  to  execute  a  deed 
of  conveyance ;  ^  while  in  this  country  it  is  necessary 
to  aver  an  execution  of  it,  and  an  offer  to  deliver  it. 

1  Poole  V.  Hill,  6  M.  &  W.  8,35,  Cas.  on  Contr.  825 ;  see  Duke  of 
St.  Albans  v.  Shore,  1  H.  Bl.  270,  Cas.  on  Contr.  464 ;  Standley  v- 
Hemmington,  6  Taunt.  561,  Cas.  on  Contr.  816. 

2  Poole  V.  Hill,  supra.  In  Duke  of  St.  Albans  v.  Shore,  1  H.  BI. 
270,  Cas.  on  Contr.  464,  it  is  to  be  observed  that  the  defendant  was 
to  make  a  conveyance  to  the  plaintiff,  as  well  as  the  plaintiff  to  the 
defendant ;  and  yet  the  plaintiff  averred  no  performance  as  to  the 
former.  It  seems,  therefore,  that  the  declaration  was  bad  for  that 
reason. 


224  PERFORMANCE   OF  CONDITIONS. 

In  an  action  by  the  buyer,  on  the  otlier  hand,  it  is 
necessary  in  England  to  aver  a  tender  of  a  deed  of 
conveyance  for  execution ;  while  in  this  country  it  is 
only  necessary  to  aver  a  readiness  and  willingness, 
and  an  offer,  to  pay  the  purchase-money  upon  the 
delivery  of  a  deed  of  conveyance.  Again,  the  seller 
is  required  in  England  to  "  make  out  a  good  title  " 
before  the  time  appointed  for  the  completion  of  the 
purchase,  and  this  includes  proving  to  the  buyer,  by 
the  production  of  satisfactory  evidence,  that  a  deed  of 
conveyance  executed  and  delivered  by  the  seller,  in 
conformity  to  the  contract,  will  convey  all  that  it  pur- 
ports to  convey  and  be  a  complete  performance  of  the 
contract ;  and  hence,  in  an  action  by  the  seller,  it  is 
necessary  to  aver  and  prove  the  making  out  of  a  good 
title  in  the  sense  just  stated.  What  will  be  a  suffi- 
cient averment  for  that  purpose  has  been  made  a  ques- 
tion. Lord  Loughborough  expressed  the  opinion  in 
Duke  of  St.  Albans  v.  Shore  ^  that  it  was  not  sufficient 
to  aver  generally  that  the  plaintiff  made  out  or  offered 
to  make  out  a  good  title,  but  he  must  state  how ;  and 
this  opinion  was  followed  up  by  an  actual  decision  in 
Phillips  V.  Fielding.^  But  this  latter  case  was  virtually 
overruled  (and  properly  so)  by  Martin  v.  Smith.^  A 
distinction  must  be  taken  between  cases  where  the 
plaintiff's  title  is  the  foundation  of  his  action,  and 
cases  where  the  action  is  upon  a  contract,  and  the 
plaintiff  is  called  upon  to  show  title  merely  by  way 
of  showing  performance  of  a  condition.  It  is  true 
that,   in   averring  performance  of   a  condition,   facts 

1  1  H.  Bl.  270,  Cas.  on  Contr.  464. 

2  2  H.  Bl.  12.3,  Cas.  on  Contr.  799. 
8  6  East,  655,  Cas.  on  Contr.  812. 


PERFORMANCE   OF   CONDITIONS.  22& 

must  be  stated,  and  not  conclusions,  o.  g.  the  plaintiff 
must  state  what  he  has  done,  and  not  that  he  has  done 
all  that  was  necessary ;  but,  on  the  other  hand,  facts 
should  be  stated,  and  not  evidence,  and  to  require  the 
seller  to  set  out  his  abstract  of  title  would  cause  intol- 
erable prolixity.  However,  no  such  question  is  likely 
to  arise  directly  in  this  country,  as  the  seller  here  is 
not  required  to  make  out  a  title  in  the  English  sense ; 
it  is  sufficient  that  he  has  a  good  title  "  of  record,"  and 
the  buyer  must  inform  himself  in  regard  to  it.  It  is 
only  necessary,  therefore,  for  the  seller  to  show  his 
ability  to  perform  the  contract,  and  this,  for  the  reason 
just  stated,  he  may  do  in  general  terms. ^ 

171.  As  the  law  will  permit  no  man  to  take 
advantage  of  his  own  wrong  (nullus  commodum  eapere 
potest  de  injuria  sua  propria^  ^  it  is  always  an  excuse 
for  not  performing  a  condition  of  a  covenant  or 
promise  that  the  covenantor  or  promisor  prevented 
its  performance.^  It  must  appear,  however,  that  the 
non-performance  was  not  in  any  degree  the  fault  of 
the  covenantee  or  promisee,  and  therefore  he  must 
show  that  he  did  everything  in  his  power  to  perform 
the  condition,  unless  the  act  of  prevention  rendered 
the  performance  impossible  in  the  nature  of  things.^ 
If  the  performance  of  a  condition  requires  the  co- 
operation of  both  parties,  and  the  covenantor  or 
promisor  prevents  its  performance  by  refusing  to  do 
his  part,  of  course  that  will  be  an  excuse  for  its  non- 

1  See  Ferry  v.  Williams,  8  Taunt.  62,  Cas.  on  Contr.  818. 

2  Per  Popham,  C.  J.,  in  Raynay  v.  Alexander,  Yelv.  %%,  Cas,  on 
Contr.  443 ;  Ilothara  v.  East  India  Co.,  1  T.  R.  638,  Cas.  on  Contr 
779,  784 ;  Peeters  v.  Opie,  2  Wnis   Saund.  350,  Cas.  on  Contr.  792. 

<*  Blandford  v.  Andrews,  Cro.  Eliz.  6U4,  Cas.  on  Contr.  787. 
lo 


226  PERFORMANCE   OF   CONDITIONS. 

performance.^  So  if  the  performance  of  a  condition 
requires  tlie  co-operation  of  a  third  person,  and  the 
latter  prevents  its  performance  by  the  procurement 
of  the  covenantor  or  promisor,  or  in  colhision  with 
him,  it  seems  that  this  will  amount  to  a  prevention 
by  the  latter  ;2  and  it  seems  that  this  principle  might 
have  been  applied  in  Milner  v.  Field.^  But  in  both 
of  the  foregoing  cases  the  covenantee  or  promisee 
must  show  that  he  has  performed  the  condition  so 
far  as  it  could  be  performed  without  the  co-operation 
of  the  covenantor  or  promisor  or  of  the  third  person  ; 
and  also  that  he  has  done  everything  necessary  to 
procure  such  co-operation,  e,  g.  by  giving  notice  and 
making  request.*  The  law,  however,  will  compel  no 
one  to  do  vain  and  nugatory  acts  (lex  neminem  cogit 
ad  vana  seu  inutilia  peragenda)^  and  therefore  if  a 
covenantor  or  promisor,  who  is  required  to  co-opei'ate 
in  the  performance  of  a  condition,  has  disabled  him- 
self from  doing  so,  the  covenantee  or  promisee  need 
do  nothing ;  ^  and  the  effect  will  be  the  same  if  the 
covenantor  or  promisor  gives  notice  to  the  covenantee 
or  promisee  that  he  will  not  perform  the  condition  on 

1  Shales  v.  Seignoret,  1  Ld.  Raym.  440,  Cas.  on  Contr.  899;  Lan- 
cashire (-'.  Killingworth,  1  Ld.  Raym.  686,  V2,  Mod.  529,  Cas.  on  Contr. 
796 ;  Large  v.  Cheshire,  1  Vent.  147,  Cas.  on  Contr.  795. 

2  Batterbury  v.  Vyse,  2  H.  &  C.  42,  Cas.  on  Contr.  835. 

3  5  Exch.  829,  Cas.  on  Contr.  516. 

*  Hohlipp  V.  Otway,  2  Wms.  Saund.  106,  Cas.  on  Contr.  445; 
Anon.,  2  Rol.  238,  Cas.  on  Contr.  791;  Shales  v.  Seignoret,  1  Ld. 
Raym.  440,  Cas.  on  Contr.  899 ;  Lancasliire  v.  Killingworth,  1  Ld. 
Raym.  686,  12  Mod.  529,  Cas.  on  Contr.  796 ;  Large  v.  Cheshire,  1 
Vent.  147,  Cas.  on  Contr.  795;  Austin  v.  Jervoyse,  Hobart,  69,  Cas 
on  Contr.  790. 

&  Mayne's  Case,  5  Rep.  20  b,  Cas.  on  Contr.  898;  Short  w.  Stone, 
8  Q.  B.  358,  Cas.  on  Contr.  921 ;  Caines  v.  Smith,  15  M.  &  W,  189, 
Cas.  on  Contr.  926. 


PERFORMANCE  OF  CONDITIONS.  227 

his  part ;  for  the  former  cannot  complain  that  the 
latter  takes  him  at  his  word.  It  was  upon  ihis 
ground  that  Ripley  v.  M'Clure  ^  was  decided ;  for  the 
defendant  there  gave  notice  to  the  plaintiff  that  he 
would  not  receive  the  cargo  of  tea  (i.  e.  not  under  the 
contract  under  which  it  was  decided  that  he  was 
bound  to  receive  it),  and  that  was  held  to  excuse  the 
defendant  for  not  offering  to  deliver  it.  It  is  true 
that  the  defendant  might  have  effectually  retracted 
the  notice  at  any  time  before  the  time  for  delivering 
the  cargo  arrived,  and  he  claimed  that  he  had  done 
so,  but  the  decision  was  against  him  on  that  point. 
The  case  of  Cort  v.  Ambergate,  &c.  Railway  Co.^ 
illusti'ates  the  same  principle  in  a  still  more  striking 
manner ;  for  the  defendants  there  having  given  notice 
that  they  would  not  accept  the  chairs  contracted  for, 
it  was  held  that  the  plaintiffs  might  maintain  an 
action  for  damages  without  having  even  manufactured 
the  chairs.  Jones  v.  Barkley  ^  appears  to  have  been 
decided  upon  the  same  principle,  but  the  fact  was 
there  apparently  lost  sight  of  that  it  was  not  the 
defendant,  but  a  third  person  (Lane),  whose  co-opera- 
tion was  necessary  to  the  performance  of  the  con 
dition.  The  declaration  averred  that  the  defendant 
"  absolutely  discharged  "  the  plaintiffs  from  perform- 
ing the  condition.  This  may  mean  that  the  defendant 
informed  the  plaintiff  that  performance  of  the  condi- 
tion would  not  be  accepted,  or  that  the  defendant 
would  not  perform  his  promise,*  or  it  may  mean  both 

1  4  Exoh.  345,  Cas.  on  Contr.  927. 

2  17  Q.  B.  127,  Cas.  on  Contr.  937. 
8  Doug.  684,  Cas.  on  Contr.  901. 

*  Cas.  on  Contr.  909,  per  Lord  Mansfield. 


228  PERFORMANCE   OF   CONDITIONS. 

of  these  tilings.  Whether  the  last  would  discharge 
the  plaintiffs  from  performing  the  condition  will  be 
considered  presently ;  but  it  seems  that  the  first  could 
have  no  such  effect,  as  Lane  was  the  only  person  who 
could  accept  performance  of  the  condition,  and  it  was 
not  shown  that  the  defendant  had  any  authority  to 
act  or  speak  for  him. 

172.  According  to  the  third  resolution  in  Mayne's 
Case,^  in  an  action  on  a  covenant  or  promise,  it  is  a 
sufficient  excuse  for  the  plaintiff's  not  having  per- 
formed a  condition,  that  the  defendant  had  disabled 
himself  from  performing  the  covenant  or  promise ; 
and  if  this  is  so,  a  notice  from  the  defendant  that  he 
will  not  perform  the  covenant  or  promise  ought  to 
produce  the  same  effect.  It  seems,  however,  that  this 
is  incorrect  as  to  conditions  precedent,  notwithstanding 
the  dictum  of  Maule,  J.,  in  Sands  v.  Clarke.^  A  disa- 
bility in  the  defendant  to  perform,  or  a  notice  by  him 
that  he  will  not  perform,  cannot  be  placed  higher  than 
an  actual  refusal  by  him  to  perform ;  and  yet  he  has 
a  perfect  right  to  refuse  to  perform  so  long  as  the 
condition  remains  unperformed,  the  condition  being 
precedent.  If  it  be  said  that  the  plaintiff  performs 
the  condition  with  the  full  expectation  of  having  the 
covenant  or  promise  performed,  and  that  it  is  un- 
reasonable to  require  him  to  perform  the  former 
when  it  is  certain  that  he  cannot  have  peiformance 
of  the  latter,  the  answer  is,  that  it  is  not  unreasonable 
to  require  him  to  do  so,  if  he  wishes  to  sue  on  the 
covenant  or  promise,  for  it  is  the  necessary  conse- 
quence of  the  condition's  being  precedent.     The  only 

1  6  Rep.  20  b,  Cas.  on  Contr.  898. 

a  8  C.  B.  751,  7G2,  Cas.  on  Contr.  899,  n.  (1). 


PERFORMANCE   OF   CONDITIONS.  229 

security  that  one  ever  has,  when  he  performs  a  con- 
dition precedent,  that  the  covenant  or  promise  will 
be  performed,  is  an  action  for  damages,  and  that  the 
plaintiff  has  in  the  case  supposed.  The  only  way  in 
which  the  law  can  relieve  a  plaintiff  from  this  hard- 
ship is  by  making  the  condition  concurrent,  and  that 
the  law  does  whenever  it  can.  As  to  what  will 
constitute  actual  performance,  there  is  of  course  no 
difference  between  concurrent  conditions  and  condi- 
tions precedent ;  but  as  to  what  will  be  an  excuse  for 
non-performance,  there  is  a  great  difference.  It  is  of 
the  essence  of  a  concurrent  condition  that  its  perform- 
ance is  conditional  upon  the  performance  of  the 
covenant  or  promise,  and  hence  a  refusal  to  perform 
the  covenant  or  promise  concurrently  with  the  per- 
formance of  the  condition  necessarily  excuses  the 
non-performance  of  the  latter ;  and  in  legal  contem- 
plation it  is  the  cause  of  the  non-performance  of  the 
latter,  i.  e.  it  prevents  its  performance.  It  is  upon 
this  theory  that  it  is  always  sufficient  for  a  plaintiff 
to  aver  that  he  was  able  and  willing,  and  offered,  to 
perform  a  concurrent  condition,  if  the  defendant 
would  perform  the  covenant  or  promise,  and  that  the 
latter  refused.  And  even  this  need  not  be  averred  if 
the  defendant  has  disabled  himself  from  performing 
the  covenant  or  promise,^  or  if  he  has  given  notice 
that  he  will  not  perform  it.  This  latter  was  the 
ground  of  the  decision  in  Withers  v.  Reynolds ;  ^  for, 
by  the  true  construction  of  the  contract,  each  load  of 
straw  was  to  be  paid  for  on  delivery,  and,  the  plaintiff 

1  Short  V.  Stone,  8  Q.  B.  358,  Cas.  on  Contr.  921 ;  Caines  v.  Smith, 
15  M.  &  W.  189,  Cas.  on  Contr.  926. 

2  2  B.  &  AJ.  882,  Cas.  on  Contr.  740. 


230  PERFORMANCE   OF   CONDITIONS. 

having  given  notice  that  he  would  not  pay  on  delivery, 
the  defendant  was  entitled  to  assume  that  he  would 
keep  his  word,  and  hence  he  was  not  bound  to  per- 
form the  nugatory  act  of  offering  the  straw. 

173.  Such  being  the  theory  upon  which  a  refusal  tt 
perform  a  covenant  or  promise  excuses  the  non-per- 
formance of  a  concurrent  condition  upon  which  the 
covenant  or  promise  depends,  it  is  clear  that  the 
doctrine  has  no  application  to  conditions  precedent ; 
and  as  the  condition  in  Jones  v.  Barkley  ^  was  a 
precedent  one,  for  the  reasons  given  in  §§  23,  133,  the 
performance  of  it  was  not  dispensed  with  by  a  notice 
from  the  defendant  that  he  would  not  pay  the  money 
according  to  his  promise.  It  seems,  therefore,  that 
the  theory  upon  which  the  defendant's  second  and 
third  pleas  were  framed  was  correct.  It  may  be  said 
that  the  third  resolution  in  Mayne's  Case  ^  must  have 
been  intended  to  apply  to  conditions  precedent,  as 
concurrent  conditions  were  then  unknown  ;  but  the 
answer  to  that  is,  that  the  condition  in  that  case  was 
in  truth  concurrent,  and,  though  the  court  did  not  in 
terms  hold  it  taJDe^such,  yet^they  treated  it  as  such 
in  their  third  resolution,  and  the  reasons  given  for  the 
resolution  are  applicable  only  to  concurrent  condi- 
tions. Moreover,  the  only  authority  cited  ^  is  a  plain 
case  of  a  concurrent  condition,  and  it  is  only  by 
treating  it  as  such  that  the  decision  can  possibly  be 
supported. 

174.  When  the  performance  of  a  condition  requires 
the  co-operation  of  both  parties,  much  will  depend 

1  Doug.  684,  Cas.  on  Contr.  901. 

2  5  Rep.  20  b,  Cas.  on  Contr.  898. 
8  14  H.  IV.  18  b,  pi.  19. 


PERFORMANCE   OF   CONDITIONS.  231 

upon  the  time  and  place  of  performance.  Thus,  if 
the  performance  is  to  be  at  the  residence  or  place  of 
business  of  the  covenantee  or  promisee,  all  that  is 
required  of  the  latter  is  to  be  there  ready  to  perform ; 
and  if  the  other  party  does  not  come,  the  performance 
is  excused.  If,  on  the  other  hand,  the  performance 
is  to  take  place  at  the  residence  or  place  of  business 
of  the  covenantor  or  promisor,  or  at  some  other  place 
than  the  residence  or  place  of  business  of  either  party ,i 
the  covenantee  or  promisee  must  not  only  be  present 
at  the  appointed  time  and  place,  but  he  must  have 
there  the  means  of  performance,  e.  g.  if  anything  is 
to  be  delivered  by  way  of  performance,  it  must  be 
there.  Again,  if  a  particular  day  be  appointed  for 
performance,  each  party  will  have  the  whole  of  that 
day  to  perform  in,  and  therefore  either  party  who 
wishes  to  preserve  his  own  rights,  and  at  the  same 
time  put  the  other  in  default,  if  necessary,  should 
attend  at  the  place  appointed  at  the  close  of  the  day  ;2 
but  what  will  be  the  close  of  a  day  for  the  purpose  of 
performing  a  condition  will  depend  upon  circum- 
stances, e.  g.  if  the  performance  is  to  be  at  a  place  of 
business  which  has  a  regular  and  known  time  of 
closing,  that  will  be  deemed  the  close  of  the  day 
within  the  meaning  of  the  contract.^  When  the 
excuse  for  non-performance  consists  in  the  fact  that 
the  defendant  was  not  present  at  the  appointed  time 
and  place,  the  plaintiff  need  only  aver  that  he  was 
there,  ready  and  willing  to  perform,  but  the  defendant 

1  See  Shales  v.  Seignoret,  1  Ld.  Raym.  440,  Cas.  on  Contr.  899. 

2  Lancashire  v.  Killingworth,  1  Ld.  Raym.  686,  12  Mod.  529,  Cas. 
on  Contr.  796. 

8  Per  Holt,  C.  J.,  in  Lancashire  v.  Killingworth,  1  Ld.  Raym   686, 
12  Mod.  529,  Cas.  on  Contr.  796,  798. 


232  PERFORMANCE   OF   CONDITIONS. 

was  not  there  to  receive  performance ;  ^  but  if  the 
excuse  consists  in  the  fact  that  the  defendant  refused 
to  perform  on  his  part,  the  plaintiff  must  aver,  not 
only  that  he  was  present  at  the  appointed  time  and 
place,  ready  to  perform,  but  also,  in  case  of  a  condi- 
tion precedent,  that  he  offered  or  tendered  perform- 
ance, and  the  defendant  refused  to  accept  it ;  '^  in  case 
of  a  concurrent  condition,  that  he  offered  to  perform 
if  the  defendant  would  also  perform,  but  the  defendant 
refused.  In  Rawson  v.  Johnson  ^  and  Waterhouse  v. 
Skinner,*  in  each  of  which  the  payment  of  money  by 
the  plaintiff  constituted  a  concurrent  condition,  it  was 
held  (on  motion  in  arrest  of  judgment)  that  an  aver- 
ment of  readiness  and  willingness  to  pay  was  sufficient, 
though  it  did  not  appear  that  the  defendant  was 
absent ;  but  it  is  to  be  observed  that  the  ground 
taken  by  the  defendant's  counsel  for  arresting  the 
judgment  was,  that  an  absolute  tender  of  the  money 
should  have  been  averred ;  ^  and  as  that  was  clearly 
untenable,  it  was  scarcely  the  fault  of  the  court  that 
the  distinction  between  averring  an  absolute  tender 
of  the  money  and  ^r^erring_a^conditional  offer  of  it 
was  not  taken.  In  averring  an  excuse  for  the  non- 
performance of  a  condition,  it  is  always  necessary  to 
show,  not  only  what  efforts  towards  performance  have 
been  made  by  the  plaintiff,  but  why  those  efforts  have 

1  Lancashire  v.  Killingworth,  1  Ld.  Rayra.  686,  12  Mod.  529,  Cas. 
on  Contr.  796. 

2  Lea  V.  Exelby,  Cro.  Eliz.  888,  Cas.  on  Contr.  789 ;  Ball  v.  Peake, 
1  Sid.  13,  Cas.  on  Contr.  791 ;  Lancashire  v.  Killingworth,  1  Ld. 
Raym.  686,  12  Mod.  529,  Cas.  on  Contr.  796. 

3  1  East,  203,  Cas.  on  Contr.  805. 

*  2  B.  &  P.  447,  Cas.  on  Contr.  810. 

*  Compare  Phillips  v.  Fielding,  2  II.  Bl.  12.3,  Cas.  on  Contr.  799. 


PERFORMANCE   OF   CONDITIONS.  238 

not  been  successful,  i.  e.  what  the  defendant,  has  done 
to  prevent  performance. ^  Therefore,  in  Peeters  v. 
Opie,^  the  averment  would  clearly  have  been  in- 
sufficient on  demurrer,  and  it  is  at  least  very  doubtful 
if  it  was  sufficient  after  verdict.  So  in  Poole  v.  Hill  ^ 
it  seems  that  the  declaration  was  defective  in  not 
showing  why  the  plaintiff  had  not  executed  a  con- 
veyance and  offered  to  deliver  it,  namely,  that  the 
defendant  had  not  prepared  it  and  tendered  it  to  him 
for  execution. 

175.  Though  an  excuse  for  not  performing  a  con- 
dition is  for  some  purposes  equivalent  to  performance, 
yet  it  is  not  the  same  thing,  and  therefore,  in  pleading, 
performance  must  never  be  averred  by  a  party  who  relies 
upon  an  excuse  for  not  performing,  but  he  must  state 
his  excuse.^  Even  under  recent  statutes,  authorizing 
performance  of  conditions  to  be  averred  in  general 
terms,  a  plaintiff  cannot,  under  an  averment  that  he 
has  done  all  things  necessary  towards  performing  a 
condition,  prove  that  the  defendant  has  prevented 
his  performing  it.^  Therefore,  in  the  common  cases 
of  concurrent  conditions,  where  the  plaintiff  has  been 
ready  and  willing  to  perform  at  the  time  and  place 
appointed,  but  the  defendant  has  not  appeared,  or 
where  the  plaintiff  has  offered  to  perform,  but  the 
defendant  has  refused,  the  plaintiff  must  aver  his 
excuse  for  not  performing  with  common-law  strictness. 

176.  An  opinion  has  prevailed  extensively,  not  only 

1  Per  Holt,  C.  J.,  in  Lancashire  v.  Killingworth,  1  Ld.  Raym.  686^ 
12  Mod.  529,  Cas.  on  Contr.  796,  797. 

2  2  Wras.  Saund.  350,  Cas.  on  Contr.  792. 
»  6  M.  &  W.  835,  Cas.  on  Contr.  825. 

*  Co.  Litt.  304,  Cas.  on  Contr.  900,  n.  (1). 

^  Bullen  and  Leake,  Precedents  of  Pleading  (3d  ed.)  148. 


234  PERFORMANCE   OF   CONDITIONS. 

that  a  pl-aintiff  who  has  been  prevented  by  the  defend- 
ant from  performing  a  condition  has  a  right  of  action, 
but  that  he  has  the  same  right  of  action  as  if  he  had 
performed  the  condition.  This  opinion  must  be  re- 
ceived, however,  with  much  qualification.  If,  indeed, 
the  performance  of  a  condition  does  not  constitute  the 
quid  pro  quo  for  the  covenant  or  promise  which  is  de- 
pendent upon  it,  it  is  true  that  prevention  of  perform- 
ance by  the  defendant  will  give  the  same  right  of  action 
to  the  plaintiff  that  performance  will  give ;  for  the 
defendant  has  committed  precisely  the  same  breach 
of  his  covenant  or  promise  in  each  case.  He  has  cov- 
enanted or  promised  to  give  or  do  something  upon  the 
happening  of  a  certain  event ;  and  though  the  event 
has  not  happened,  he  is  the  cause  of  its  not  having 
happened.  Therefore  he  must  perform  his  covenant 
or  promise,  or  pay  damages  equivalent  to  its  perform- 
ance. Holdipp  V.  Otway  ^  seems  to  have  been  a  case 
of  this  description,  and  also  Jones  v.  Barkley  ;  ^  and 
this  seems  to  be  an  additional  reason  (171,  173)  for 
questioning  the  correctness  of  the  decision  in  the  latter. 
But  when  the  performance  of  the  condition  is  the  quid 
pro  quo  of  the  covenant  or  promise,  the  covenant  or 
promise  is,  first,  to  accept  the  quid  pro  quo,  and, 
secondly,  to  give  or  do  something  in  payment  for  it. 
If,  therefore,  the  defendant  prevents  the  performance 
of  such  a  condition,  the  very  act  of  prevention  is  a 
breach  of  the  first  part  of  the  covenant  or  promise, 
and  the  cause  of  action  then  arises.  No  other  breach 
is  or  can  be  committed,  for  the  performance  of  the 
remainder  of  the  covenant  or  promise  never  becomes 

1  2  Wins.  Saund.  106,  Cas.  on  Contr.  446. 

2  Doug.  684,  Cas.  on  Contr.  901. 


PEEFORMANCE    OF   CONDITIONS.  235 

due.  Hence  the  defendant  is  only  liable  in  damages 
for  preventing  the  performance  of  the  condition  ;  i.  e. 
such  damages  as  will  compensate  the  plaintiff  for  the 
loss  of  the  bargain.  This  is  all  that  the  plaintiff  is  in 
justice  entitled  to  receive.  To  permit  him  to  recover 
as  if  the  condition  had  been  performed  would  be  to 
permit  him  to  keep  the  quid  pro  quo  and  yet  recover 
payment  for  it.  In  accordance  with  these  principles, 
it  was  held  in  Laird  v.  Pim  ^  that  the  plaintiff  was 
entitled  to  recover  only  special  damages.  For  the 
same  reason,  in  Smith  v.  Wilson,^  the  plaintiff  clearly 
was  not  entitled  to  recover  freight.  Though  it  was 
the  defendant's  fault  that  freight  had  not  been  earned, 
yet  the  fact  remained  that  it  had  not  been ;  and  that 
was  an  answer  to  the  action.  For  the  same  reason, 
also,  the  plaintiff  was  not  entitled  to  recover  in  Mattock 
V.  Kinglake,^  unless  the  covenants  were  independent ; 
for  the  action  was  debt  to  recover  the  purchase-money. 
So  in  Shales  v.  Seignoret  *  it  was  properly  held  that 
the  plaintiff  was  not  entitled  to  recover  the  purchase- 
money  of  the  stock,  as  the  stock  had  not  been  trans- 
ferred, and  that  the  plaintiff  should  "  have  assigned 
his  breach  in  the  non-acceptance  of  the  stock  by  the 
defendant."  For  the  same  reason,  namely,  that  no 
good  breach  was  assigned,  it  seems  that  the  declara- 
tion was  bad  in  Poole  v.  Hill,^  though  the  point  was 
not  noticed  either  by  the  counsel  or  by  the  court.  So 
in  Lancashire  v.  Killingworth  ^  it  seems  that  the  plain- 

i  7  M.  &  W.  474,  Gas.  on  Contr.  914. 

2  8  East,  437,  Gas.  on  Gontr.  909. 

8  10  Ad.  &  El.  50,  Gas.  on  Gontr.  662. 

*  1  Ld.  Raym.  440,  Gas.  on  Gontr.  899. 

6  6  M.  &  W.  835,  Gas.  on  Gontr.  825. 

6  1  Ld.  Raym.  686,  12  Mod.  529,  Gas.  on  Gontr.  79ft 


236  PERFORMANCE   OF   CONDITIONS. 

tiff  was  not  entitled  to  recover  the  2,000?.  puicliase- 
money  (even  if  the  dechiration  had  been  good  in  other 
respects),  notwithstanding  the  opinion  of  Holt,  C.  J., 
to  the  contrary.  So  in  Peeters  v.  Opie  ^  and  in  Large 
V.  Cheshire  ^  there  seems  to  have  been  no  good  breach 
assigned.  In  Thorpe  v.  Thorpe^  the  release  pleaded 
by  the  defendant  could  not  be  a  defence,  because  the 
plaintiff's  right  of  action  did  not  accrue  until  the 
release  was  executed  and  delivered.  The  plaintiff 
might  indeed  have  acquired  a  right  of  action  without 
delivering  the  release,  if  the  defendant  had  refused 
to  accept  it,  or  had  refused  to  pay  the  11. ,  but  it  would 
not  have  been  a  right  to  recover  the  11.  In  fact,  how- 
ever, the  plaintiff  delivered  the  release  without  insist- 
ing upon  payment,  and  the  defendant  accepted  the 
release,  but  did  not  pay  ;  hence  the  11.  became  a  debt. 
In  Beecher  v.  Conradt  '^  the  court  seems  to  have  been 
inconsistent  with  itself,  for,  on  the  one  hand,  it  held 
that  the  covenant  to  pay  the  last  instalment  of  the 
purchase-money  was  conditional  upon  the  plaintiff's 
conveying  the  land,  and,  on  the  other  hand,  that  the 
last  instalment  became  due  without  any  conveyance, 
or  even  offer  to  convey.  If  the  court  was  right  in  its 
first  position,  then  no  right  of  action  had  ever  accrued 
as  to  the  last  instalment,  and  there  was  nothing  to 
prevent  the  plaintiff's  recovering  the  first  four  instal- 
ments. If  the  court  was  wrong  in  its  first  position 
(136),  the  plaintiff  was  entitled  to  recover  the  whole 
of  the  pur«jhase-money. 

1  2  Wras.  Saund.  350,  Cas.  on  Contr.  792. 
a  1  Vent.  147,  Cas.  on  Contr.  796. 
8  12  Mod.  455,  Cas.  on  Contr.  446. 
*  3  Kern.  108,  Cas.  on  Contr.  767. 


PERFORMANCE   OF   CONDITIONS.  237 

177.  In  accordance  with  the  maxim,  Allegans  con- 
traria  non  est  audiendus,  a  covenantor  or  promisor 
will  not  be  permitted  to  take  two  inconsistent  positions 
in  regard  to  the  performance  of  a  condition.  If, 
therefore,  having  a  right  to  throw  up  the  contract  for 
a  breach  of  condition,  he  elects  to  go  on  with  it,  he 
cannot  afterwards  set  up  the  same  breach  in  defence 
to  an  action  on  the  contract.  Therefore,  in  Havelock 
V.  Geddes,^  a  breach  of  the  plaintiff's  covenant  that 
"  the  ship,  at  his  expense,  should  be  forthwith  made 
tight  and  strong,"  &c.,  was  no  defence  to  the  action. 
For  the  same  reason,  in  Hall  v.  Cazenove,^  the  breach 
of  the  plaintiff's  covenant  that  the  ship  should  sail  on 
or  before  the  12th  of  February  would  not,  it  seems, 
have  been  a  defence,  even  if  that  covenant  had  been 
valid.3  So  in  Thompson  v.  Noel*  the  defendant  could 
not  set  up  a  breach  of  the  plaintiff's  covenant  to  carry- 
two  hundred  and  eighty  men  after  he  had  consented 
to  his  carrying  one  hundred  and  eighty  men.  So  in 
Jonassohn  v.  Young,^  the  defendant  having  gone  on 
with  the  contract  after  the  breaches  which  he  com- 
plained of  were  committed,  it  was  too  late  for  him  to 
set  them  up  as  defences.  So  in  Dicker  v.  Jackson  ^  it 
seems  that  the  defendant  had  precluded  himself  from 
setting  up  a  breach  of  the  promise  to  deliver  an  ab- 
stract, &c.,  by  retaining  possession  of  the  property. 
On  the  same  principle,  it  seems  that  the  replication  in 

i  10  East,  555,  Cas.  on  Contr.  857,  859,  862. 

2  4  East,  477,  Cas.  on  Contr.  842. 

8  And  see  Constable  v.  Cloberie,  Palm.  397,  Cas.  on  Contr.  837. 

*  1  Lev.  16,  Cas.  on  Contr.  838. 

5  4  Best  &  S.  296,  Cas.  on  Contr.  703. 

6  6  C.  B.  103,  Cas.  on  Contr.  676. 


238  PERFORMANCE   OF    CONDITIONS. 

Ellen  V.  Topp  ^  ought  to  have  been  held  good  ;  and  it 
seems  not  to  have  been  open  to  the  objection  that  it 
set  up  a  parol  variation  of  a  contract  under  seal,  or 
that  it  departed  from  the  declaration  by  setting  up  a 
different  contract.  In  truth,  it  set  up  matter  of 
estoppel  merely.^  That  the  principle  under  consid- 
eration is  not  confined  to  contracts  not  under  seal 

1  6  Exch.  424,  Cas.  on  Contr.  520. 

2  Such  at  least  seems  to  be  the  necessary  consequence  of  holding 
that  the  plaintiff's  continuing  to  follow  the  three  trades  of  auctioneer, 
api>raiser,  and  corn-factor,  was  a  condition  of  the  defendant's  covenant 
tiiat  the  apprentice  should  serve,  as  stated  in  §  41.  Further  consid- 
eration of  the  case,  however,  has  led  the  writer  to  doubt  the  correct- 
ness of  that  view.  There  is  a  difficulty  in  holding  that  the  plaintiff's 
continuing  to  follow  the  three  trades  was  a  condition,  for  it  was  not 
a  future  and  uncertain  event  (26) ;  it  was  a  mere  continuance  of  an 
existing  state  of  things.  It  is  also  the  nature  of  a  condition  (unless 
it  be  a  condition  subsequent)  to  suspend  the  obligation  of  a  covenant 
or  promise  until  the  event  happens  wliich  constitutes  the  condition 
(29,  30)  ;  but  tlie  plaintiff's  contmuing  to  carry  on  tiie  three  trades 
in  Ellen  v.  Topp  did  not  suspend  the  obligation  of  the  defendant's 
covenant  that  the  apprentice  should  serve ;  on  the  contrary,  the  obli- 
gation of  tha.t  covenant  arose  tlie  moment  the  covenant  was  made.  It 
is  true  that  the  event  of  the  plaintiflTs  ceasing  to  carry  on  the  three 
trades  might  have  been  made  a  negative  condition  subsequent,  but 
there  seems  to  be  no  ground  for  saying  that  it  was  made  such  a  con- 
dition (42,  43).  It  seems,  therefore,  that  the  defendant's  covenant 
was  not  properly  conditional ;  and  yet  it  was  not  an  unqualified  cov- 
enant that  the  apprentice  should  serve ;  it  was  only  a  covenant  that 
he  should  serve  as  an  apprentice  to  those  three  trades.  In  this  view, 
tiie  defence  was  that  the  covenant  had  not  been  broken ;  and  if  tlie 
plaintiff  had  resumed  the  three  trades  during  the  period  of  the  ap- 
prenticesliip,  the  apprentice  must  have  resumed  his  service  ;  whereas, 
if  the  plaintiff's  fcdlowing  the  three  trades  was  a  condition,  the  moment 
that  he  ceased  to  follow  them  the  apprentice  was  absolutely  dis- 
charged. 

If  the  view  of  the  case  here  presented  is  the  correct  one,  it  seems 
to  follow  that  the  replication  was  bad,  as  setting  up  a  parol  variation 
of  a  contract  under  seal,  and  also  as  being  a  departure  from  the 
declaration. 


PERFORMANCE   OF   CONDITIONS.  239 

seems  to  be  evident  from  the  fact  that  in  three  of 
the  cases  already  stated  (viz.  Havelock  v.  Geddes, 
Hall  V.  Cazenove,  and  Thompson  v.  Noel)  the  con- 
tract was  under  seal.  It  was  with  reference  to  a 
contract  under  seal  also  that  Lord  Cranworth  said  in 
the  House  of  Lords  :  ^  "  The  party  who  may  avail 
himself  of  the  non-performance  of  a  condition  pre- 
cedent, but  who  allows  the  other  side  to  go  on  and 
perform  the  subsequent  stipulations,  has  waived  his 
right  to  insist  upon  the  unperformed  condition  pre- 
cedent as  an  answer  to  the  action."  In  Bornmann 
V.  Tooke^  the  defendant's  obligation  to  pay  freight 
was  not  affected  by  his  "  having  accepted  the  cargo," 
for  the  cargo  belonged  to  him.^ 

See  tits.  Conditions  ;  Conditions  Precedent  ;  Con- 
current Conditions. 

1  Roberts  v.  Brett,  11  H.  L.  Cas.  337,  Cas.  on  Contr.  575,  686. 

2  1  Campb.  377,  Cas.  on  Contr.  847. 

'  Compare  Ritchie  v.  Atkinson,  10  East,  295,  Cas.  on  Contr.  848, 
per  Lord  Eilenborougb. 


240  REVOCATION   OF   OFFER. 


REVOCATION   OF   OFFER. 


178.  An  offer  which  contains  no  stipulation  as  to 
how  long  it  shall  continue,  as  it  confers  no  right  on 
the  offeree,  is  in  its  nature  revocable  at  any  moment. 
If  the  offerer  stipulates  that  his  offer  shall  remain 
open  for  a  specified  time,  the  first  question  is  whether 
such  stipulation  constitutes  a  binding  contract.  In 
those  countries  where  the  civil  law  prevails,  it  will  do 
SO5  provided  it  be  accepted  and  relied  upon  by  the 
offeree ;  and  that  will  be  presumed  in  the  absence  of 
evidence  to  the  contrary.^  By  our  law,  however,  it 
must  also  be  supported  by  a  sufficient  consideration, 
or  be  contained  in  an  instrument  under  seal,  in  order 
to  be  binding.2  When  it  is  not  binding,  of  course  it 
is  in  law  only  an  expression  of  present  intention,  and 
its  only  effect  upon  the  offer  will  be  to  fix  the  period 
that  it  shall  continue,  provided  it  be  not  revoked  in 
the  mean  time.^  When  such  a  stipulation  is  binding, 
the  further  question  arises,  whether  it  makes  the  offer 
irrevocable.     It  has  been  a  common  opinion   that   it 

1  B.  &  M.  Railroad  v.  Bartlett,  3  Gush.  224,  Cas.  on  Contr.  103, 
105. 

2  Cooke  )•.  Oxley,  3  T.  R.  653,  Cas.  on  Contr.  2 ;  Dickinson  v. 
Dodds,  2  Ch.  D.  463,  Cas.  on  Contr.  61,  67,  68. 

»  B.  &  iM.  Railroad  v.  Bartlett,  3  Cush.  224,  Cas.  on  Contr.  103. 


REVOCATION   OF   OFFER.  241 

does,^  but  that  is  clearly  a  mistake.  The  offer  and 
the  stipulation  are  two  separate  things,  and  the  nature 
of  the  former  is  not,  and  cannot  be,  changed  by  the 
latter.  It  may  be  said  that  the  offer,  in  the  case  sup- 
posed, does  confer  a  right  on  the  offeree,  and  therefore 
the  reason  given  above  for  an  offer's  being  revocable 
does  not  apply.  It  is,  however,  the  stipulation,  and 
not  the  offer,  that  confers  the  right.  An  offer  is 
merely  one  of  the  elements  of  a  contract;  and  it  is 
indispensable  to  the  making  of  a  contract  that  the 
wills  of  the  contracting  parties  do,  in  legal  contem- 
plation, concur  at  the  moment  of  making  it.  An  offer, 
therefore,  which  the  party  making  it  has  no  power  to 
revoke,  is  a  legal  impossibility.  Moreover,  if  the 
stipulation  should  make  the  offer  irrevocable,  it  would 
be  a  contract  incapable  of  being  broken ;  which  is 
also  a  legal  impossibility.  The  only  effect,  therefore, 
of  such  a  stipulation  is  to  give  the  offeree  a  claim 
for  damages  if  the  stipulation  be  broken  by  revoking 
the  offer.  It  is  not  a  contract  of  which  it  is  possible 
for  equity  to  enforce  specific  performance.^  These 
principles  seem  to  have  been  lost  sight  of  by  Bacon, 
V.  C,  in  Dickinson  v.  Dodds.^ 

179.  Care  must  here  be  taken,  however,  to  observe 
a  distinction  which  is  apt  to  be  lost  sight  of.  There 
is  no  doubt  that  A  may  make  a  binding  promise  to 
sell  certain  property  to  B  on  certain  terms,  while  B  is 
left  perfectly  free  to  buy  the  property  or  not ;  and 
such  a  promise  will,  in  most  respects,  confer  the  same 

1  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125,  137,  138. 

2  See  B.  &  M.  Railroad  Co.  v.  Bartlett,  3  Cush.  224,  Cas.  on  Contr 
103. 

8  2  Ch.  D.  463,  Cas.  on  Contr.  61,  64-66. 
16 


242  REVOCATION   OF  OFFER. 

rights  upon  B  as  if  he  had  made  a  counter-promise  to 
buy.  But  such  a  case  differs  materially  from  the  one 
put  in  the  preceding  paragraph.  It  is  not  an  offer 
contemplating  a  bilateral  contract,  but  it  is  a  complete 
unilateral  contract.  All  that  remains  to  be  done  is 
for  B  to  perform  the  condition  of  the  promise  by 
paying  the  price,  and  for  A  to  perform  the  promise. 
The  contract  will  remain  unilateral  until  it  is  per- 
formed, or  otherwise  comes  to  an  end.  Of  course  A 
and  B  together  can  at  any  moment  substitute  for  it 
a  bilateral  contract,  but  they  cannot  strictly  convert 
it  into  a  bilateral  cmitract ;  still  less  can  this  be  done 
by  any  act  of  B  alone.  Even  if  B  should  subsequently 
make  a  binding  promise  to  buy  the^^roperty,  the  result 
would  not  be  a  bilateral  contract,  but  two  unilateral 
contracts  ;  the  two  promises  would  not  be  the  con- 
sideration of  each  other,  and  each  would  have  to 
be  supported  by  some  other  sufficient  consideration. 
Moreover,  a  promise  by  A  to  sell  without  a  counter- 
promise  by  B  to  buy,  will  never  put  it  in  the  power 
of  B  to  become  the  owner  of  the  property  by  any  act 
of  his  own  ;  for  the  minds  of  seller  and  buyer  must 
concur  in  order  to  pass  title.  For  example,  if  A  should 
offer  to  sell  a  book  to  B  for  one  dollar,  an  acceptance 
of  the  offer  by  B  would  instantly  make  him  the  owner 
of  the  book ;  but  if  A  should  make  a  binding  promise 
to  sell  the  book  to  B,  without  any  counter-promise  by 
B  to  buy  it,  and  B  should  afterwards  notify  A  that  he 
would  take  the  book,  A  might  refuse  to  let  him  have 
it,  and  B  could  only  recover  damages.  It  is  seldom, 
however,  that  parties  have  any  intention  of  making  a 
contract  of  this  latter  description,  and  hence  such  an 
intention   will  seldom   be   expressed.     For   the    same 


REVOCATION    OF  OFFER.  243 

reason  the  law  will  never  presume  an  intention  to 
make  such  a  contract,  and  hence  such  contracts  may 
be  said  to  have  practically  no  existence.^  If,  there- 
fore, A  and  B  agree  that  B,  for  a  sufficient  considera- 
tion, shall  have  the  refusal  of  A's  horse  for  one  month 
at  $100,  the  law  supposes  them  to  mean  that  A  offers 
his  horse  to  B  for  $100,  and  stipulates  that  the  offer 
shall  continue  for  one  month ;  and  the  case  will  ac- 
cordingly be  governed  by  the  principles  stated  in  the 
preceding  paragraph. 

180.  As  an  offer  can  only  be  made  by  a  communi- 
cation from  the  offerer  to  the  offeree,  so  it  can  only 
be  revoked  in  the  same  manner.^  Unumquodqiie  dis- 
solvitur  eodem  ligamine  quo  ligatur.  An  opinion  has 
prevailed,  to  some  extent,  that  an  offer  is  only  evidence 
of  the  offerer's  state  of  mind,  and  hence  that  it  will 
be  destroyed  by  any  satisfactory  evidence  that  the 
offerer  has  changed  his  mind  since  he  made  the  offer ; 
and  this  has  been  supposed  to  be  a  necessary  conse- 
quence of  the  rule  that,  in  order  to  make  a  contract, 
the  minds  of  the  contracting  parties  must  concur  at 
the  time  of  making  it.^  But  an  offer  is  much  more 
than  evidence  of  the  offerer's  state  of  mind ;  other- 
wise, communication  to  the  offeree  would  not  be  of 
its  essence.  It  is,  indeed,  evidence  of  the  offerer's 
state  of  mind,  but  it  is  not  evidence  which  can  be 
rebutted,  except  by  showing  that  the  offer  has  ex- 
pired, or  has  been  revoked.  If  an  offer  could  be 
destroyed  by  evidence  that  the  offerer  has  changed 

J  See  B.  &  M.  Railroad  Co.  v.  Bartlett,  3  Cush.  224,  Cas.  on  Contr 
103. 

2  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125,  136-13'' 
8  Thomson  v.  James,  18  Duiilop,  1,  Cas.  on  Contr.  125,  136. 


244  REVOCATION   OF   OFFER. 

his  mind,  it  could  also  be  rehabilitated  after  it  haa 
expired  by  evidence  that  the  offerer  continued  of  the 
same  mind.  As  to  the  rule  that  the  wills  of  the  con- 
tracting parties  must  concur,  it  only  means  that  they 
must  concur  in  legal  contemplation,  and  this  they  do 
whenever  an  existing  offer  is  accepted,  no  matter  how 
much  the  offerer  has  changed  his  mind  since  he  made 
the  offer.  In  truth,  mental  acts  or  acts  of  the  will 
are  not  the  materials  out  of  which  promises  are  made ; 
a  physical  act  on  the  part  of  the  promisor  is  indispen- 
sable ;  and  when  the  required  physical  act  has  been 
done,  only  a  physicalact  can  undo  it.  An  offer  is  a 
physical  and  a  mental  act  combined,  the  mental  act 
being  in  legal  intendment  embodied  in,  and  repre- 
sented by,  and  inseparable  from,  the  physical  act. 
The  law,  however,  makes  this  intendment  only  for 
purposes  of  justice  and  convenience,  and  therefore  it 
will  never  make  it  when  the  actual  existence  of  the 
mental  act  would  be  impossible.  Hence  the  death  or 
insanity  of  an  offerer  during  the  pendency  of  his  offer 
makes  it  impossible  to  complete  the  contract  for  want 
of  a  concurrence  of  wills. ^ 

181.  It  follows  from  what  has  been  said,  that  an 
offer  to  sell  property  Avill  not  be  revoked  by  a  sale  of 
the  property  to  some  one  else.  As  evidence  of  a 
change  of  mind  on  the  part  of  the  offerer,  such  an 
act  cannot  be  put  higher  than  a  letter  of  revocation 
sent  to  the  offeree  by  mail ;  and  yet  it  is  well  settled 
that  a  letter  of  revocation  will  not  be  operative  until 
it  is  received  by  the  offeree.^    Nor  will  the  subsequent 

1  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125,  129,  136; 
S.  V.  F.  Cas.,  on  Contr.  156,  160-161. 

2  Thomson  v.  James,  18  Dunlop,  1,  Cas.  on  Contr.  125. 


REVOCATION   OF   OFFER.  245 

sale  of  the  property  to  some  one  else  constitute  any 
legal  obstacle  to  the  continuance  of  the  offer.  The 
original  offeree  and  the  subsequent  purchaser  cannot, 
indeed,  both  acquire  the  property,  but  they  can  both 
acquire  a  right  to  it  as  against  the  seller,  together 
with  the  alternative  right  to  damages  ;  and  this  is  all 
that  a  contract  secures  to  one  in  any  case.  As  to  the 
purchaser's  expectation  of  acquiring  the  property,  that 
is  always  liable  to  disappointment  by  a  failure  of  title 
in  the  seller.  When  an  offer  to  sell  is  of  such  a  nature 
that  the  title  would  pass  immediately  upon  the  offer's 
being  accepted,  as  in  case  of  a  specified  chattel,  of 
course  this  result  will  be  prevented  by  an  executed 
sale  of  the  chattel  to  some  one  else  before  the  accept- 
ance of  the  offer  ;  and  the  offer  can  then  be  converted 
by  acceptance  only  into  an  executory  contract  of  sale. 
But  when  the  offer  is  to  sell  real  property  (as  in 
Dickinson  v.  Dodds  ^)  or  unspecified  personal  property 
(as  in  Adams  v.  Lindsell  ^),  a  subsequent  sale  of  the 
property,  whether  executed  or  executory,  will  have 
no  effect  upon  the  contract  which  will  be  formed  by 
an  acceptance  of  the  offer.  Thus  stands  the  question 
upon  principle.  As  to  authority,  in  Adams  v.  Lindsell, 
it  was  assumed  that  a  sale  of  the  wool  by  the  defend- 
ants before  the  acceptance  of  their  offer  by  the  plain- 
tiffs would  have  amounted  to  a  revocation  ;  but  the 
point  was  not  at  all  discussed,  nor  did  the  court  profess 
to  decide  it,  their  decision  being  in  favor  of  the  plain- 
tiffs. In  Dickinson  v.  Dodds  ^  the  appellate  court 
undoubtedly  expressed  the  opinion,  that  the  subsequent 

1  2  Ch.  D.  463,  Gas.  on  Contr.  61. 

2  1  B.  &  Aid.  681,  Cas.  on  Contr.  4. 
8  2  Ch.  D.  463,  Cas.  on  Contr.  61. 


240  REVOCATION  OF   OFFER. 

contract  with  Allan,  either  alone  or  together  with  the 
plaintiff's  knowledge  of  it,  revoked  the  offer  to  the 
plaintiff ;  but  the  point  was  not  involved,  for,  the  con- 
tract with  Allan  having  been  made  before  the  contract 
with  the  plaintiff  was  made,  Allan  was  entitled  to  a 
priority  over  the  plaintiff,  and  hence  the  plaintiff's 
bill,  which  was  for  a  specific  performance,  was  rightly 
dismissed.  To  an  action  at  law  by  the  plaintiff'  for 
damages,  however,  Dodds  would  have  had  no  defence, 
182.  It  is  admitted  at  the  present  day  that  the 
reasons  given  for  the  decision  in  Cooke  v.  Oxley  ^  are 
bad,  and  that,  upon  the  facts  stated  in  the  declaration, 
if  proved  at  the  trial,  the  plaintiff  would  have  been 
entitled  to  recover.  But  elaborate  attempts  have 
recently  been  made^  to  support  the  decision  upon  the 
ground  that  the  declaration  was  bad.  It  is  said  that 
the  declaration  does  not  allege  that  the  offer  was  a 
continuing  one  when  it  was  accepted,  and  therefore 
does  not  show  that  concurrence  of  wills  which  is 
necessary  to  the  making  of  a  contract ;  and  though 
proof  of  the  continuance  of  the  offer  might  have  been 
dispensed  with  at  the  trial,  because  there  was  a  pre- 
sumption that  it  continued,  yet  that  this  was  only  a 
presumption  of  fact,  and  so  could  not  be  called  in  to 
aid  the  declaration.  This,  however,  assumes  that  an 
offer  is  mere  evidence  of  the  offerer's  intention,  whereas 
it  is  an  act  which  constitutes  one  of  the  elements  of 
a  contract.  In  this  case  the  offer  continued  until  four 
o'clock,  P.M.,  of  its  own  force,  unless  revoked  in  the 
mean  time.  Proof  of  the  offer  and  of  the  acceptance  of 
it  as  alleged  would  have  proved  the  contract  as  matter 

1  3  T.  R.  653,  Gas.  on  Contr.  2. 

2  See  Leake,  Contracts,  2(1  ed.  44 ;  Benjamin,  Sale,  2d  ed.  52. 


REVOCATION   OF   OFFER.  247 

of  law ;  and  the  burden  would  have  been  upon  the 
defendant  to  prove  that  the  offer  had  been  revoked, 
if  such  was  the  fact ;  and  if  the  evidence  of  a  revoca- 
tion had  been  unsatisfactory,  or  if  the  evidence  for 
and  against  it  had  been  evenly  balanced,  the  jury 
would  have  been  bound  to  find  a  verdict  for  the  plain- 
tiff. In  a  word,  the  presumption  that  the  defendant 
was  of  the  same  mind  when  the  offer  was  accepted  as 
when  it  was  made  was  a  presumption  of  law  and  not 
of  fact. 

See  Offer;  Acceptance  of  Offer;  Muiual   Con- 
sent. 


248     UNILATERAL  AND   BILATERAL  CONTRACTS. 


UNILATERAL    CONTRACTS    AND    BILAT- 
ERAL   CONTRACTS. 


183.  A  contract  is  one  of  the  means  by  which  two 
persons  make^a^ntftual  exchange  of  something  which 
one  of  them  has  for  something  which  the  other  has. 
When  such  an  exchange  is  made  on  each  side  at  the 
same  moment,  and  without  either  party's  incurring 
any  previous  obligation  to  make  it,  it  is  made  without 
a  contract.  A  familiar  instance  of  an  exchange  so 
made  is  where  a  shopkeeper  sells  goods  over  his 
counter  for  cash ;  for  in  that  case  the  goods  are 
exchanged  for  the  money  without  any  previous  con- 
tract either  to  buy  or  to  sell.^  In  most  cases,  however, 
it  is  not  convenient  to  make  the  exchange  on  each 
side  at  the  same  moment,  and  in  many  cases  it  is 
impossible  to  do  so,  e.  g.  where  the  thing  to  be  ex- 
changed on  one  side  consists  of  something  to  be  done 
which  cannot  be  done  in  a  moment  of  time ;  and 
whenever,  for  either  of  these  reasons,  the  exchange 
is  made  on  one  side  before  it  is  made  on  the  otlier 
side,  a  contract  becomes  necessary  for  the  security  of 
the  party  who  performs  his  part  of  the  exchange  first ; 
for  it  is  only  by  means  of  a  contract  that  he  can  com- 
pel performance   by  the  other  party.     For  the  same 

1  Bussey  v.  Barnett,  9  M.  &  W.  312. 


UNILATERAL   AND   BILATERAL   CONTRACTS.     249 

reason,  also,  the  contract  must  be  made  not  later  than 
the  moment  when  the  exchange  is  made  by  the  party 
who  performs  first ;  and  if  the  making  of  the  ex- 
change on  the  side  of  the  party  who  performs  first 
requires  time,  it  is  necessary  for  his  protection  that 
the  contract  be  made  before  performance  by  either 
party.  Frequently  also  the  parties  do  not  desii-e  that 
the  exchange  be  made  immediately  on  either  side, 
but  wish  to  bind  themselves  mutually  to  make  it  at 
some  future  time ;  and  in  all  such  cases,  of  course,  a 
contract  is  made  before  performance  on  either  side. 
Whenever,  therefore,  the  making  of  an  exchange  is 
preceded  in  whole  or  in  part  by  a  contract  to  make  it, 
the  contract  must  be  made  either  before  the  exchange 
is  made  on  either  side,  or  at  the  moment  that  it  is 
made  on  one  side  and  before  it  is  made  on  the  other 
side.  In  the  former  case  each  of  the  parties  binds 
himself  to  the  other  by  a  covenant  or  promise  to  make 
the  exchange  on  his  side ;  and  hence  the  contract  is 
called  bilateral,  or  two-sided.  In  the  latter  case,  only 
one  of  the  parties  covenants  or  promises  to  make  the 
exchange,  the  other  party  actually  making  it  instead 
of  covenanting  or  pi'omising  to  make  it;  and  hence 
the  contract  is  called  unilateral,  or  one-sided.  A 
^~  bilateral  contract,  therefore,  is  one  which  is  to  be 
performed  on  each  side  at  some  future  time,  while  a 
unilateral  contract  is  one  in  which  one  of  the  parties 
performs  at  the  moment  when  the  other  covenants  or 
promises  to  perform.  In  other  words,  a  bilateral  con- 
tract is  executory  on  both  sides,  while  a  unilateral 
contract  is  executed  on  one  side.  A  bilateral  contract 
also  becomes  unilateral  whenever  one  side  of  it  is  fully 
performed,  the  other  side  remaining  to  be  performed, 


250     UNILATERAL  AND  BILATERAL  CONTRACTS. 

184.  It  must  not  be  supposed,  however,  that  two 
parties  who  bind  themselves  mutually  to  give  or  do 
something  at  some  future  time  necessarily  make  a 
bilateral  contract ;  for  they  may  so  bind  themselves 
by  two  unilateral  contracts.  If,  for  example,  one  of 
the  parties  covenants  and  the  other  promises,  the 
covenant  and  the  promise  will  each  constitute  a  uni- 
lateral contract ;  for  a  contract  cannot  be  in  part  a 
simple  contract,  and  in  part  a  specialty,  and  yet  such 
would  be  the  nature  of  a  bilateral  contract  consisting 
of  a  covenant  on  one  side  and  a  promise  on  the  other 
side.  Again,  if  two  parties  mutually  covenant  to  give 
or  do  something,  the  two  covenants  may  constitute 
one  bilateral  contract  or  two  unilateral  contracts  at 
the  option  of  the  parties.  If  both  covenants  are  con- 
tained in  the  same  instrument,  a  presumption  will 
arise  that  they  were  intended  to  constitute  one  con- 
tract; but  if  they  are  contained  in  separate  instru- 
ments, each  being  complete  in  itself,  and  neither 
making  any  reference  to  the  other,  they  necessarily 
constitute  two  coiy^racts. 

185.  It  is  of  the  essence  of  a  bilateral  contract  that 
the  covenants  or  promises  which  it  contains  constitute 
the  consideration  for  each  other.  Therefore,  an  in- 
strument which  contains  several  covenants  or  promises  ^ 
by  each  of  two  parties  may  constitute  one  contract  or 
several  contracts,  and  if  several,  they  may  all  be  uni- 
lateral or  all  bilateral,  or  partly  one  and  partly  the 
other.^  If,  for  example,  all  the  covenants  or  promises 
on  one  side  collectively  be  the  consideration  for  all 
those  on  the  other  side  collectively,  all  the  covenants 

1  §§  113,  114,  115 ;  Giles  v.  Giles,  9  Q.  B.  164,  Cas.  on  Contr 
744,  cited  §§  23,  135. 


UNILATERAL  AND  BILATERAL  CONTRACTS.     251 

or  promises  on  both  sides  will  constitute  one  bilateral 
contract.  On  the  other  hand,  if  the  covenants  or 
promises  on  each  side  respectively  be  the  consideration 
for  the  covenants  or  promises  on  the  other  side  re- 
spectively, there  will  be  as  many  bilateral  contracts 
as  there  are  covenants  or  promises  on  each  side.  Again, 
each  covenant  or  promise  (if  there  be  any  such)  which 
has  for  its  consideration  something  else  than  the  cov- 
enants or  promises  on  the  other  side,  will  constitute  a 
separate  unilateral  contract.  For  this  reason,  two 
simple-contract  debts  cannot  constitute  a  bilateral 
contract,  as  they  cannot  be  the  consideration  for  each 
other,  but  each  must  have  a  quid  pro  quo  consisting 
of  something  given  or  done  by  the  other.  So  a  simple- 
contract  debt  on  one  side  and  a  covenant  or  promise 
ou  the  other  side  cannot  constitute  a  bilateral  contract, 
as  the  covenant  or  promise  cannot  be  the  consideration 
for  the  debt. 

186.  A  contract  cannot  have  more  than  two  sides. 
When,  therefore,  more  than  two  parties,  or  two  sets 
of  parties,  contract  with  each  ot\er,  there  must  be 
more  than  one  contract.  In  such  cases,  each  separate 
party  contracts  either  with  all  the  others  jointly,  or 
with  each  of  the  others  separately,  according  to  cir- 
cumstances. When  each  contracts  with  all,  there  are 
as  many  covenants  or  promises  as  there  are  contracting 
pai-ties,  and  each  covenant  or  promise  makes  a  separate 
unilateral  contract.  If  A  makes  a  promise  to  B  and 
C  jointly,  in  consideration  of  B  and  C's  making  a  joint 
promise  to  A,  there  are  only  two  promises  in  all,  each 
being  the  consideration  of  the  other,  and  they  make 
one  bilateral  contract ;  but  if  A  makes  a  promise  to 
B  and  C  in  consideration  of  B"s  making  a  promise  to 


252     UNILATERAL  AND  BILATERAL  CONTRACTS. 

A  and  C,  and  of  C's  making  a  promise  to  A  and  B; 
there  are  three  promises  in  all,  and  no  two  of  tliem 
are  mutual ;  and  hence  no  two  of  them  can  make  a 
bilateral  contract.  It  seems,  moreover,  that  neither 
promise  will  be  binding,  unless  supported  by  some 
consideration  besides  the  other  promises.  A  promise 
by  A  to  B  will  not  support  a  promise  by  B  to  C, 
because  B's  promise  would  be  without  any  considera- 
tion moving  from  C  (83).  Nor  will  a  promise  by  A 
to  B  and  C,  and  a  promise  by  B  to  A  and  C,  support 
each  other  ;  for,  if  they  would,  C  would  acquire  a  joint 
interest  in  both  promises,  without  any  consideration 
moving  from  him.  It  may  be  said  that  C's  interest 
in  the  promises  of  A  and  B  is  supported  by  his  prom- 
ise to  them  jointly  ;  but  that  would  be  equivalent  to 
saying  that,  while  neither  the  promise  of  B  nor  the 
promise  of  C  will  alone  support  the  promise  of  A, 
the  promise  of  B  and  the  promise  of  C  will  together 
support  the  promise  of  A  ;  in  other  words,  that  nothing 
added  to  nothing  equals  something.  It  seems,  there- 
fore, that  an  agreement  between  three  or  more  persons, 
by  which  each  agrees  with  all  the  others,  must,  if 
wholly  executory,  be  under  seal  in  order  to  be  bind- 
ing.^ An  agreement  between  three  or  more  persons 
to  form  a  copartnership  is  a  good  example  of  such  an 
agreement.^ 

^  In  George  v.  Harris,  4  N.  H.  533,  it  appeared  that  twenty-nine 
persons  liad  severally  subscribed  certain  sums  for  an  object  which  they 
all  desired  to  accomplish  ;  and  one  of  them  having  refused  to  pay  his 
subscription,  the  others  were  permitted  to  maintain  an  action  against 
liim  to  recover  it,  the  court  holding  (erroneously,  seiuble)  that  the 
promise  of  each  might  be  considered  as  made  in  consideration  of  the 
promises  of  the  others. 

■^  Eccleston  v.  Clipsham,  1  Wms.  Saund.  153 ;  Spencer  v.  Durant, 


UNILATERAL  AND  BILATERAL  CONTRACTS.     253 

187.  When  each  of  three  or  more  persons  contracts 
with  each  of  the  others,  each  will  make  as  many  cove- 
nants or  promises  as  there  are  contracting  parties,  less 
one  ;  and  the  whole  number  of  covenants  or  promises 
will  equal  the  whole  number  of  contracting  parties 
multiplied  by  the  same  number  less  one.  Moreover, 
there  will  be  in  effect  a  separate  agreement  between 
each  party  and  each  of  the  others,  and  each  agreement 
will  form  a  separate  bilateral  contract.  There  will, 
therefore,  be  half  as  many  contracts  as  there  are  cove- 
nants or  promises.  An  example  of  such  an  agreement 
will  be  found  in  an  agreement  between  three  or  more 
joint  tenants  that,  upon  the  death  of  either,  his  share 
of  the  joint  property  shall  be  conveyed  by  each  of  the 
others  to  his  heirs. ^ 

The  consequences  of  a  contract's  being  unilateral  or 
bilateral  are  many  and  important,  but  they  have  been 
fully  stated  under  other  titles,  and  therefore  it  is  un- 
necessary to  repeat  them  in  this  place. 

Comb.  115;  Saunders  v.  Johnson,  Skin.  401,  Comb.  230;  Capen  i. 
Barrows,  1  Gray,  376  (overruling  Dunham  v.  Gillis,  8  Mass.  462). 
1  Wotton  V.  Cooke,  Dyer,  337. 


\ 


INDEX. 


THE   REFERENCES   ARE    TO    SECTIONS. 


ACCEPTANCE  OF  OFFER.     (See  Offer;  Revo- 
cation OF  Offer.) 

is  essential  to  constitute  promise 1 

without  perfonnance  of  consideration,  nugatory      .  2,  4 

every  promise  an  offer  before 1 

implies  knowledge  of  offer 3 

cannot  exist  where  parties'  minds  do  not  meet  .     .  148 

must  be  within  time  offer  specifies 152 

cannot  be  after  revocation  of  offer,  or  death  or  in- 
sanity of  offerer 7,  18,  178 

In  unilateral  contracts, 

no  notice  of,  to  offerer,  necessaiy 2 

unless  stipulated  for  by  offerer 6 

instances  of  implied  stipulation  for 6 

effect  of  stipulation  for 6 

in  allotments  of  shares 6 

in  contracts  of  sale 6 

does  not  imply  performance  of  consideration       .     .  2 

performance  of  consideration  implies 2,  .3 

without  full  performance,  no  promise 2,  4 

criticism  of  contraiy  view 4 

when  performance  of  consideration  complete,  a  ques- 
tion of  law  in  sales  of  personalty 5 

does  not  relate  back  to  time  of  offer 7 

relation  discussed  in  this  connection 7-11 

where  offer  does  not  specify  time, 

must  be  within  reasonable  time 155 


256  INDEX. 

ACCEPTANCE   OF  OFFER  — continued. 

what  is  reasonable  time 155 

in  offers  of  reward 155 

in  allotments  of  shares 156 

In  bilateral  contracts, 
how  it  differs  from  acceptance  in  unilateral  con- 
tracts    11,  12 

implies  performance  of  consideration 12 

giving  counter-promise  is  performance 12 

how  one  offer  and  one  acceptance  can  constitute  two 

promises 13 

must  be  communicated  to  offerer 14 

so  held,  as  to  contracts  inter  prcesentes     ....  14 

conflict  of  authorities  as  to  contracts  inter  absentes  14 

examination  of  authorities 14 

discussion  of  the  question  on  principle  ....  14,  15 

parties  cannot  stipulate  to  the  contrary       ...  15 

must  be  in  terms  of  offer 17,  18 

whei-e  particular  mode  of,  is  required  by  offer    .     .  17 
where  offer  does  not  specify  time, 

must  be  within  reasonable  time 152 

what  constitutes  reasonable  time 152 

delays  in  receipt  of,  if  by  mail 152 

miscarriage  of,  when  by  mail 152 

revocation  of, 

mere  change  of  offeree's  mind  is  not      .     .     .  149 
may  be  at  any  time  before  receipt  of  acceptance  16 
by  letter  revoking  or  modifying  acceptance     .     .  16 
where  revocation  and  acceptance  are  received  to- 
gether     16 

ACCORDS, 

definition  of 87 

always  bilateral  contracts 87 

unilateral  promises  to  extinguish  debts  are  not  .     .  87 

formerly  held  not  binding  .' 87 

when  invalid, 

if  to  pay  less  sum  in  satisfaction  of  greater     .     .  88 

if  no  cause  of  action  exist  originally 88 

when  plaintiff  must  allege  good  cause  of  action  58,  88 

examination  of  authorities  on 88 


i 


INDEX.  257 

ALLOTMENT   OF   SHARES, 

application  for,  is  an  offer 6 

remains  open  a  reasonable  time 152,  156 

accepted  by  allotment 6 

notice  of,  impliedly  necessary 6 

complete  by  mailing  letter 6 

though  letter  be  never  received 6 

title  to  shares  passes  when  letter  is  mailed  ...  6 

relates  back  to  time  of  allotment 6 

APPRENTICESHIP,    DEEDS   OF, 

create  a  status  in  apprentice 109 

mutual  covenants  in,  not  impliedly  dependent    .     .  109 

performance  prevented  by  apprentice's  act     .     .     .  109 

qucere,  whether  master  is  excused 109 

where  master  gives  up    trade    he  covenanted  to 

teach 41 

ARBITRATION, 

agreement  in  contract  to  refer  disputes  to      .     .     .  115 

no  implied  dependency  created  by 115 

same  rule,  if  agreement  to  refer  is  separate     .     .  115 

ASSUMPSIT   (ACTION  OF), 

origin  of 46-49,  65 

certain  promises  not  enforceable  by 48 

lies  on  bill  or  note 50 

bilateral  contracts  not  under  seal  introduced   by 

means  of 81 

AUCTION  SALES, 

bids  at,  held  offers  by  buyer 19 

true  view  of  bids,  on  principle 19 

bidder  or  seller  may  retract  before  hammer  faUs      .  19 

though  sale  be  "  without  reserve  " 19 

discussion  of  Payne  v.  Cave 19 

BAILMENTS   (GRATUITOUS), 

may  be  consideration  for  promise  to  redeliver     .     .  68 

difficulty  of  courts  formerly  in  so  holding    ...  64 

presumption  is  contra 68 

depends  on  intention  of  the  parties 68 

17 


258  INDEX. 

BANKRUPTS, 

statutory  discharge  of, 

does  not  extinguish  debt 72 

may  be  waived  by  bankrupt 72 

new  promise  is  a  waiver  of 72 

declaration  must  be  on  old  debt 72 

new  promise  must  be  replied  to  plea  of      .     .     .  72 

BILATERAL  CONTRACT.    {See  Unilateral  Con- 
tract.) 
what  it  is 106,  183 

must  consist  of  mutual  covenants  or  mutual  promises  112 
a  covenant  and  a  promise  cannot  constitute  .  .  112,  184 
a  simple-contract  debt  cannot  be  a  part  of  .  112,  128,  185 
two  simple-contract  debts  cannot  constitute    .     .     .  185 

the  covenants  or  pi'omises  which  constitute,  must  be 

the  consideration  for  each  other 185 

mutual    covenants  cannot    constitute,    unless  con- 
tained in  same  instrument 117,  184 

otherwise  of  mutual  promises 118 

executed  sales  do  not  commonly  create      ....         112 
a  bond,  policy  of  insiu-ance,  or  promissory  note  can- 
not constitute  a  part  of.     .     .   33,  49-51,  107,  117,  119 
cannot  be  between  more  than  two  parties  or  two  sets 

of  parties 186,  187 

when   fully  performed  on  one  side,  becomes  uni- 
lateral           183 

continuance  of  offer  in 152-154 

acceptance  of    offer    in.      {See   Acceptance    of 

Offer.) 
consideration  of.     {See  Consideration,  IX.) 
conditions  implied  by  law  in.     {See  Dependent 
AND  Independent   Covenants  and   Prom- 
ises.) 
conditions  precedent  implied  in  fact  in      .     .       32,  41,  150 

express  conditions  precedent  in 32-40 

concurrent  conditions  implied  in  fact  in    ...     •     20,  25 

express  concurrent  conditions  in 20,  23,  24 

conditions  subsequent  in 42-44 

contracts  partly  bilateral 109-111 


INDEX.  259 

BOXDS, 

action  of  debt  lies  on 100 

assumpsit  will  not  lie  on  promise  to  pay    ....  48 

require  no  consideration 49 

conditions  in, 

are  subsequent  in  form,  precedent  in  effect     .     •  44 
defendant  has  the  burden  of  proving  performance 

of 44 

not  dependent  by  implication  upon  notes  given  in 

exchange  for 117 

heir,  not  bound  by  ancestor's,  unless  named  therein  56 
when  void  for  coverture,  promise  to  pay  is  not  bind- 
ing    71,  76 

BOUGHT   AND   SOLD  NOTES, 

form  bilateral  contract 33 

language  creating  condition  precedent  in  ...     .  33 

bought  note,  the  language  of  the  buyer      ...  33 

sold  note,  the  language  of  the  seller 33 

.  implied  conditions  do  not  exist  in 118 

neither  can  be  varied  by  the  other 118 

nor  by  parol  evidence 118 

BUILDING   CONTRACTS, 

conditions  in 36 

where  payment  is  to  be  in  instalments  ....  34 
CHARTER-PARTIES, 

may  contain  two  contracts,  one  preliminary  and  one 

final 119 

difference  in  construction  between  policies  of  in- 
surance and 33 

conditions  precedent  implied  in  fact  in      ...     .  41 

,,  „  ,,       in  law  in       .     .  119,  122,  128 

,,                 ,,         to  cause  of  action  on      .     .     .  43 

made  dependent  on  certain  event  having  happened  23,  39 

breaches  going  to  essence  in 163,  16G-168 

exceptions  in,  effect  of 158 

waiver  of  breach  of  condition  in 177 

COMMON   COUNTS.     (See  Debt;  Executed  Con- 
sideration.) 

origin  of 90 


2G0  INDEX. 

COMMON   COUNTS  — co/z^mwed 

when  executed  consideration  will  support       ...  90 

only  when  debt  is  created 90 

if  no  debt,  allegation  of  request  useless      ...     90,  91 

criticism  of  old  view 90-95 

history  of  old  view 92,  93 

when  they  must  allege  request 96 

allegation  in,  of  promise  to  pay  on  request,  need 

not  be  proved 104 

mode  of  pleading  to, 

what  a  general  traverse  of,  puts  in  issue     ...  95 

will  not  lie  against  bail  or  guai'antor     .....  94 

effect  of  abolition  of 98 

CONCURRENT  CONDITIONS.  {See  Conditions; 
Conditions  Precedent;  Conditions  Subse- 
quent; Performance  of  Conditions;  De- 
pendent AND  Independent  Covenants  and 
Promises.) 

definition  of 20 

either  express,  implied  in  fact,  or  implied  in  law    .     20,  32 
in  unilateral  contracts, 

may  exist  in  unilateral  promises 20 

consideration  cannot  be 22 

most  common  in  unilateral  covenants     ....  22 

consideration  may  be 22 

in  bilateral  contracts, 

counter-promise  commonly  the  subject  of   .     .     .  20 

test  for  deciding  whether  express  conditions  in, 

are 23 

express,  where  law  would  not  imply 24 

implied  in  law,  found  only  in 20,  105 

implied  in  fact,  uncommon  in 25 

except  where   both  parties  must   perform,  or 

neither  can 25 

CONDITIONS.  {See  Concurrent  Conditions;  Con- 
ditions Precedent;  Conditions  Subse- 
quent ;  Dependent  and  Independent  Cov- 
enants and  Promises;  Performance  of 
Conditions;  Consideration,  V.) 
definition  of 26 


INDEX.  261 

CONDITIONS  —  Continued. 

must  be  a  future  and  uncertain  event  .     .     .  26,  28,  32,  89 

uncertainty  must  exist  in  fact 26 

not  merely  in  belief  of  parties  .......  26 

uncertainty  must  be  whether  event  will  ever  happen  26 

not  merely  as  to  time  of  its  happening  ....  26 

may  be  an  event  over  which  neither  party  has  con- 
trol    26 

or  over  which  promisee  has  control 26 

or  something  to  be  done  by  promisor      ....  26 

cannot  depend  on  promisor's  will 26 

if  to  happen  before  promise,  offer,  not  promise,  is 

conditional 27 

contracts  depending  on  certain  event  having  hap- 
pened      28,  89 

cannot  be  an  event  happening  after  promise  is  per- 
formed        29 

principle  of  classification  of 29,  30 

are  precedent,  concurrent,  and  subsequent     ...  30 

plaintiff  must  allege  precedent,  to  have  happened   .  30 

need  not  allege  subsequent,  not  to  have  happened  30 

may  be  express,  implied  in  law,  or  implied  in  fact .  32 
when  a  clause  in  a  contract  is  a  promise,  and  when 

a  condition 33 

divisibility  of 40 

mode  of  distinguishing  consideration  from    .     .     .  66-69 

CONDITIONS  PRECEDENT.  {See  Conditions; 
Conditions  Subsequent;  Dependent  and 
Independent  Covenants  and  Promises; 
Deeds  of  Realty;  Performance  of  Con- 
ditions.) 

any  uncertain  event  may  be 26,  28,  32.  89 

generally  an  act  to  be  done  by  promisee    ....  32 
performance  of,  by  promisee,  optional  in  unilateral 

contracts    . 32 

generally  otherwise  in  bilateral  contracts    ...  32 

either  express,  implied  in  fact,  or  implied  in  law    .  20,  32 

mode  of  distinguishing  stipulation  from  ••     .     .     .  33 
where  payment  for  work  is  to  be  in  instalments      .  34,  128 


262  INDEX. 

CONDITIONS   PRECEDENT  —  Continued. 

effect  of,  in  agreements  to  pay  existing  debts      .  36 

making  payment  of  debt  depend  on  promisor's  will  36 

where  employer  or  third  party  is  to  approve  of  work  36 

what  words  will  create 37,  38 

promise    unconditional  in   terms,   construed   con- 
ditional, when 39 

divisibility  of 40 

must  be  wholly  performed 40 

implied  in  fact 41 

when  making  a  demand  is 104 

when  giving  notice  is 150 

in  offers.     (See  Offer.) 

performance    of.      (See   Performance   of   Con- 
ditions.) 
implied  in  law.     {See  Dependent  and  Indepen- 
dent Covenants  and  Promises.) 

CONDITIONS  SUBSEQUENT.  (See  Conditions; 
Concurrent  Conditions;  Conditions  Pre- 
cedent; Performance  of  Conditions.) 

common  in  transfers  of  property 42 

may  exist  in  unilateral  or  bilateral  contracts  .     .     .  42-44 

may  be  implied  in  law 42 

may  be  express 42 

exceptions  in  charter-parties 42 

may  be  a  negative  or  positive  event 43 

right  to  sue  after  breach,  made  to  cease  on    .     .     .  43 

differences  between  conditions  precedent  and      .     .  30 

do  not  suspend  obligation  to  perform 29-31 

but  extinguish  existing  obligation     ....    29-31,  42 

burden  of  proving  performance  of,  is  on  defendant  30,  44 

in  bonds 44 

CONSIDERATION.  (See  Acceptance  of  Offer; 
Revocation  of  Offer.) 

definition  of ,     .  45 

two  kinds  of,  distinguished 46 

history  of  thfi^two  kinds  of 46,  47 

some  promises  on,  not  enforceable  by  assumpsit      .  48 


INDEX.  263 

CONSIDERATION  —  Continued. 

reason  for  this  anomaly 48 

all  common-law  contracts  not  under  seal  require      .  47,  49 

contracts  valid  by  custom  of  merchants,  without      .  49-53 

I.  Adequacy  of 54-60 

must  be  commensurate  with  debt,  to  create  a  debt .  46,  54 

need  not  be  adequate,  to  support  assumpsit   ...  54 

examples  of  valid  consideration : 

surrender  of  paper  containing  void  contract    .     .  54 

execution  of  release  of  void  claim 54 

showing  a  deed 54 

proving  promisee  to  have  right  to  sue     ....  54 

stating  an  account 54 

giving  bond  of  indemnity 54 

making  an  affidavit 54 

surrender  of  a  letter  by  promisee 54 

allowing  boilers  to  be  weighed 54 

entering  into  a  contract 54 

discharge  from  legal,  but  groundless,  imprison- 
ment        54 

examples  of  invalid  consideration: 

verbal  transfer  which  is  inoperative 54 

discharging  promisee  from  illegal  imprisonment  .  54 

doing  what  promisee  is  already  bound  to  do    .     .  54 

performance  of  official  duty 54 

payment  of  smaller  sum  to  satisfy  larger     .     .     .  54,  88 

instance  where  consideration  must  be  adequate  .     .  55 

reason  for  this  anomaly 55 

forbearance  to  sue  may  be 56 

claim  must  be  valid 56 

when  plaintiff  must  allege  validity  of  claim     .     .  56,  58 

by  assignee  of  chose  in  action 56 

on  note  of  feme  covert 56 

by  heir,  on  ancestor's  bond 56 

where  claim  is  doubtful 56 

explanation  of  Longridge  v.  Dorville  ....  56 

where  claim  is  groundless,  but  bona  fide     ...  57 

Callisher  v.  Bischoffsheim  criticised    ....  57 

Cook  V.  Wright  explained 57 


264  INDEX. 

CONSIDERATION—  Continued. 

declaration  must  specify  time  to  continue  ...  59 

if  perpetual,  contract  must  be  bilateral ....  59 

•when  time  of,  is  unspecified 59 

is  construed  to  be  for  a  reasonable  time  ...  59 

reasonable  time  is  a  question  for  the  jury    .     .  59 

II.  Consideration  and  motive, 

no  distinction  between,  in  debt 60 

otherwise,  in  assumpsit 60 

nominal  consideration,  valid 60 

motive,  apart  from   consideration,  no  element  of 

contract 61 

III.  From  whom  consideration  must  move  .     .     .     .  62,  63 

on  principle,  from  promisee  only 62,  63 

person  for  whose  benefit  contract  is  made  cannot 

sue  thereon 62 

IV.  To  whom  the  consideration  must  move  .     .     .     .  64,  67 

in  debt,  to  the  debtor 64 

in  assumpsit,  to  any  one,  or  no  one 64 

consideration  need  not  be  benefit  to  promisor     .     .  64 

must  be  detriment  to  promisee 64 

V.  Mutual  consent 66-69 

must  extend  to  consideration 66 

distinction  between  consideration  and  condition      .  66 

criteria  of,  for  individual  cases 66,  68 

what  acts  of  promisee  are  presumptively  neither  a 

consideration  nor  a  condition 68 

gratuitous  bailments  in  this  connection     ....  68 

VI.  Relation  in  time  of  consideration  to  promise, 
consideration  and  promise  must  be  simultaneous    .  69 

both  in  debt  and  assumpsit 69 

promises,  before  performance  of  consideration,  only 

offers 1,  70 

promises,  after  performance  of  consideration,  in- 
valid       70 

tender  of  performance  of  consideration,  insufficient  70 
VJUL.  Moral  consideration, 

histoi-y  of 71 

will  not  support  a  promise 71 


INDEX.  265 

CONSIDERATION  —  Continued. 

cases  improperly  cited  as  examples  of 72-75 

promises  with  expectation  that  promisee  will  act 

thereon,  invaiad .  79 

criticism  of  contrary  view 79 

Vin.  Void  in  part, 

promises  bind,  though  consideration  is      ...     .  80 

otherwise,  if  illegal  in  part 80 

assessing  damages,  when  consideration  is .     ...  80 

IX.  Mutual  promises, 

anciently  not  binding 81,  140 

requisites  for  validity  of,  as  consideration      ...  82 

must  be  made  simultaneously 82 

one  of,  may  be  conditional  ........  89 

one  of,  cannot  depend  on  existence  of  present  or 

past  fact 28,  89 

neither  must  be  void 82 

one  may  be  voidable 82 

promises,  not  mutual,  no  consideration  for  each 

other 83,  186 

promise  to  do  act  may  be,  when  doing  act  would 

not  be 84 

promise  to  do  what  one  is  bound  to  third  party 

"^-  ^^^- to  do 84 

promises  to  forbear  perpetually 85 

accords 87,  88 

X.  Executed  consideration.    (See  Common  Counts.) 

history  of 90-94 

will  not  support  actual  promise 91 

criticism  of  old  view 90-95 

when  common  count  wiU  lie  on 90,  91,  96 

DEATH, 

of  offerer,  destroys  offer 7,  180 

effect  of,  on  contract  for  personal  service  by  de- 
ceased    42 

DEBT.     (See  Consideration,  X.;  Common  Counts; 
Releases;   Accords;   Statute  of  Limita- 
tions; Infants.) 
nature  of 99,  100 


266  INDEX. 

DEBT  —  Continued. 

analysis  of  conception  of 98,  100 

may  be  created  by  grant 100 

more  often  created  by  contract 100 

origin  of  debt  by  simple  contract      ....     46,  100-102 

real  contracts  in  Roman  law 100 

cannot  be  created  by  a  promise 100 

action  of,  is  in  rem 100 

will  not  lie,  till  performance  of  condition  pre- 
cedent             176 

consideration  to  support  action  of, 

how  it  differs  from  consideration  in  assumpsit  46,  81,  100 

must  inm-e  to  debtor's  benefit 46,  64 

reasons  for  this  rule 65 

must  be  actually  executed 46 

mutual  promises  are  not 46,  81,  100 

no  difference  between  motive  and 60 

will  not  support  subsequent  actual  promise    .    .     .     90-99 

effect  of  such  promise 74 

notes  in  payment  of,  valid 50 

notes  create 50 

on  issue  of  policy  of  insurance,  premium  becomes  51 

effect  of  conditional  promise  to  pay 36 

agreements  to  compi'omise.     (See   Accords;  Re- 
leases.) 
cannot  be  part  of  bilateral  contract  ....  112,  128,  183 

always  a  unilateral  contract 112,  128,  183 

when  payable  on  demand 104 

meaning  of  "  demand  " 104 

of  testator,  no  consideration  for  executor's  promise  75 

barred  by  Statute  of  Limitations.     (See  Limita- 
tions, Statute  of.) 

DEEDS  OF  REALTY.    (See  Dependent  and  Inde- 
pendent  Covenants  and   Promises;  Peb- 
formance  of  conditions.) 
do  not  usually  contaih  bilateral  contract   ....         112 
on  delivery  of,  debt  lies  for  purchase-money  .     .      100,  112 

covenants  for  title  in 107,  112 

conditions  subsequent,  common  in 42 


I 


INDEX.  267 

DEMAND.     {See  Debt.) 

allegation  of,  in  pleading 104 

unnecessaiy  in  debt  or  general  assumpsit   .     .     .  104 

"where  declaration  is  not  for  a  debt 104 

if  promise  is  to  do  something  on  demand,  plain- 
tiff must  allege 104 

DEPENDENT  AND  INDEPENDENT  COVENANTS 
AND  PROMISES.  {See  Conditions;  Con- 
current Conditions;  Conditions  Prece- 
dent; Performance  of  Conditions.) 

dependency  defined 105 

peculiar  to  bilateral  contracts 105 

may  be  express  or  implied 20,  105 

implied  dependency, 

history  of  doctrine  of 139-148 

1st  stage.     Ancient  law, 

no  questions  as  to,  possible,  in  mutual  prom- 
ises   81,  140 

ancient  rule  as  to  mutual  covenants    ....  140 

no  dependency,  unless  express 140 

2d  stage.   Modern  law  prior  to  Lord  Mansfield, 

mutual  promises  held  binding 141 

no  dependency,  unless  express 141 

reasoning  of  the  courts 141 

Loi'd  Holt's  judgment  in  Thorpe  v.  Thorpe      .  141 

authorities  criticised 144 

3d  stage.     Law  since  Lord  Mansfield, 

implied  dependency  recognized 142 

reasons  for  slow  recognition  of 142 

Lord  Mansfield's  view, 

Kingston  v.  Preston 143 

implied  dependency  established 143 

division  of  conditions 143 

Lord  Kenyon's  view  in  Goodisson  v.  Nunn  .     .  143 

mutual  dependency  established 143 

Pordage  v.  Cole  reviewed 145-148 

reasons  for  doctrine  of 106 

mutual  promises,  payment  for  each  other    .       106-109 


268  INDEX. 

DEPENDENT  AND  INDEPENDENT  COVENANTS 
AND   PROMISES  —  Continued. 
does  not  exist, 
where    performance    on   either    side    is    con- 
ditional           107 

where  contract  is  partly  unilateral      ....         109 

in  leases 109,  116 

in  apprenticeship  deeds 109 

exceptions 116 

where  both  parties  partly  perform  on  making 

contract Ill 

exceptions Ill 

between  two  separate  unilateral  contracts    .      112,  117 

in  executed  sales 112 

between  separate  contracts  in  one  instrument .         115 
between  mutual  agreements  in  separate  instru- 
ments               117 

if  mutual  covenants 117 

if  promissory  notes 117 

if  mutual  promises 118 

between  preliminary  contract  and  final  contract         119 

necessary  conditions  of 120 

fundamental  principle  of 121 

is  either  general  or  mutual 122,  132 

general  dependency, 

principle  of 122 

applied  to  different  cases 122-127 

apparent  exception  to 128 

supposed  exception  to 129-131 

renders  only  one  side  of  contract  dependent .         122 

creates  conditions  precedent 122 

mutual  dependency 132 

principle  of 132 

necessary  conditions  of 133 

creates  concurrent  conditions 132 

is  favored  by  the  law 132-134 

can  exist  only  between  two  acts  ....         137 

may  be  several  in  one  contract 137 

where  time  for  performance  on  one  side  only 

is  fixed 133,137,145-148 


INDEX.  269 

DEPENDENT  AND  INDEPENDENT  COVENANTS 
AND  PROMISES  —  Continued. 

where  time  on  neither  side  is  fixed  ....         133 
general  dependency  distinguished  from     .     .         135 

may  coexist  with,  when 135 

impossible,  where  performances  are  to  be  at 

different  times 135 

EXECUTORS   AND   ADMINISTRATORS, 

cannot  be  sued  at  law  for  a  legacy 75 

promises  by,  to  pay  testator's  debts, 

require  consideration 75,  93 

indebtedness  of,  as  such,  no  consideration  ...  75 

forbearance  to  sue,  a  good  consideration,  though 

when  there  are  no  assets 56 

FORBEARANCE.     (See  Consideration.) 

GIFT, 

acceptance  of,  by  donee,  necessary,  but  presumed  .  1 

same  rule,  as  to  covenants  made  as  gifts     ...  1 

promise  cannot  constitute 1,  55 

on  principle,  notes  made  as,  binding 49,50 

GUARANTY  (CONTRACTS  OF), 

generally  unilateral 107 

if  bilateral,  no  implied  dependency  in 107 

neither  action  of  debt  nor  common  count  wiU  lie  on  94,  100 

not  binding,  if  in  consideration  of  prior  advances   .  91 

guarantor  entitled  to  notice  of  advances    ....  6 

IIMPOSSIBILITY  OF  PERFORMANCE.    {See  Per- 

FORMANCE    OF    CONDITIONS.) 

INFANT, 

promises  by,  voidable 82 

good  consideration  for  counter-promise  ....  82 

may  be  ratified  at  majority 72,  82 

new  promise  is  a  ratification 72 

mode  of  pleading  new  promise 72 

declaration  must  be  on  original  contract  .     .  72 
new  promise  must  be  replied  to  plea  of  in- 
fancy    72 


270  INDEX. 

INSANITY, 

of  ofEerer,  destroys  offer 7,  180 

INSURANCE   (CONTRACTS  OF), 

generally  unilateral 51,  107 

if  bilateral,  no  implied  dependency  in 107 

[NSURANCE  (POLICIES  OF), 

are  in  the  nature  of  specialties 49,  51 

on  principle,  require  no  consideration 49,  51 

promise  to  pay  premium,  not  consideration  for   .     .  51 

failure  of  consideration  a  defence  to  suit  on   .     .     .  52 

■when  issued,  premium  becomes  a  debt 51 

agreements  to  issue 51 

require  consideration 51,  52 

performed  by  issue  of  policy 51,  119 

equity  compels  specific  performance  of  ...     .  51 

payment  of  premium,  condition  of  issue     .     .     .  119 

effect  of  waiver  of  payment  of  premium      .     .  119 

warranties  in  marine 33 

LEASES, 

conditions  subsequent  common  in 42 

are  contracts  partly  bilateral 109 

mutual  covenants  in,  not  dependent  by  implication  109 

exceptions  to  this  rule 116 

conditional  covenant  in,  to  pay  rent  reserved      .     .  36 

does  not  affect  right  to  distrain 36 

examples  of  express  conditions  in 37,  38 

LEGAL  MAXIMS    (APPLICATIONS   OF), 

allegans  contraria  non  est  audiendus 177 

cessante  ratione,  cessat  ipsa  lex 46 

communis  error  facit  jus 89 

in  fictione  juris  semper  sequitas  existit      ....  7,  92 

lex  neminera  cogit  ad  vana  seu  inutilia  peragenda  .  171 
nullus   commodum   capere   potest  de    injuria  sua 

propria 171 

potior  est  conditio  defendentis 142 

qui  hferet  in  litera  hreret  in  cortice 37 

quilibet  potest  renuuciare  juri  pro  se  introducto      .  72 


INDEX.  271 

LEGAL  MAXIMS  (APPLICATIONS  OF)  —  Continued. 
unumquodque   dis'-olvitur   eodem  ligamine  quo  li- 

gatiir 180 

ut  res  magis  valeat,  quam  pereat 33,  36, 

LIMITATION  (STATUTES  OF), 

new  promise  repelling  plea  of 73 

only  good,  when  declaration  is  on  simple-contract 

debt 73 

origin  of  doctrine  of 73 

Lord  ISIansiield's  view  of 71 

declaration  must  be  on  old  debt 72,  73 

cannot  be  replied  to  plea  of 73 

is  given  in  evidence  under  traverse  of  plea  of      .  73 
MARRIAGE    (PROMISE   OF), 

formerly  doubted  whether  woman  was  bound  by     .  82 

both  parties  bound  by 82 

concurrent  conditions  implied  in  fact,  in  ...     .  25 
where  one  party  has  disabled  himself  from  perform- 
ing   171,  17S 

MARRIED   WOMEN, 

not  liable  on  counts  for  goods  sold 78 

forbearance  to  sue  on  note  of,  no  consideration  for 

a  promise 56 

MUTUAL  CONSENT.  {See  Offer;  Acceptance 
OF  Offer;  Revocation  of  Offer;  Consid- 
eration, V.) 

essential  to  every  contract 148 

consent  of  offerer  presumed  to  continue  as  long  as 

offer  is  open 148,  180 

consent  of  offeree,  how  long  presumed  to  continue  .  149 

generally  incapable  of  direct  proof 149 

mode  of  proving 148 

must  extend  to  consideration 66-69 

NEGOTIABLE   PAPER, 

is  governed  by  law  merchant 49 

failure  of  consideration,  a  defence  to  suit  on       .     .  52 

on  principle,  requires  no  consideration      .     .     •     .  49,  50 

general  view,  contra 49 

origin  of  general  view 50 


272 


INDEX. 


NEGOTIABLE   PAPER  —  Continued. 

reasons  for  holding  it  erroneous  .  . 
declaration  is  on  implied  promise  . 
notes  in  payment  of  debts  are  valid 
payee  can  sue  acceptor     .... 

notes  create  debts 

when  given  for  debts,  are  payment 
exchange  of  one  note  for  another      .     . 
neitlier  can  be  varied  by  the  other     . 
each  note  is  a  separate  unilateral  contract  .     .      117, 
hence  no  implied  dependency  between  them     . 
same  rule,  if  note  be  exchanged  for  specialty   117, 

or  for  another  promise 117, 

NOTICE.    (See  Guaranty;  Allotment  of  Shares.) 
of  performance  of  conditions,  when  necessary     .     . 
of  performance  of  consideration  in  unilateral  con- 
tracts   

offer  may  contain  condition  of 

condition  of,  does  not  susj^end  promise  .... 
offerer  cannot  revoke  after  performance  and  before 

receipt  of  

promisor's  liability  depends  on,  when    .... 

mailing  letter  containing,  is 

in  allotments  of  shares 

in  guaranties 

OFFER.     (.See  Acceptance  of  Offer;  Revocation 
OF  Offer.) 

mode  of  making 

requires  communication  to  offeree 2, 

acceptance  of,  when  it  contains  a  counter-offer  .     .     14 
delays  and  miscarriages  of,  when  by  mail       .     .     . 
offerer's  consent  to,  presumed  to  continue  how  long 
where  time  to  remain  open  is  not  specified    .    152,  154, 

remains  open  a  reasonable  time 

reasonable  time  in  bilateral  contracts     .     .     .      152, 

where  offer  is  by  mail 

in  sales  of  realty 

in  commercial  transactions 

where  offer  is  by  messenger 


5C 

50 

50 

50 

50 

50 

117 

117 

183 

117 

183 

183 

150 


151 
151 
,  16 
151 
149 
155 
152 
155 
152 
152 
152 
152 


INDEX.  273 

OFFER—  Continued. 

where  offer  is  ^nade  in  person 152" 

reasonable  time  in  unilateral  contracts  ....  155 

in  offers  of  reward 155 

in  allotments  of  shares 156 

renewal  of,  after  expiration  of 153 

extension  of,  without  communication  to  offeree  .     .  153 

promise  before  acceptance  is 1 

at  auction  sales.     (See  Auction  Sales.) 

if  rejected,  is  at  an  end 18 

acceptance  after  rejection  is 18 

when  conditional 27 

PERFORMANCE  OF  CONDITIONS.  (See  Consid- 
eration; Conditions;  Conditions  Prece- 
dent; Conditions  Subsequent;  Dependent 
AND  Independent  Covenants  and  Promises; 
Deeds  of  Realty;  Sales  of  Personalty.) 

where  condition  is  express 157 

cannot  be  dispensed  with 157,  160 

where  condition  is  implied  in  law, 
breach  of,  in  limine, 

party  committing,  cannot  sue 159,  160 

act  of  God  causing,  no  excuse  for 158 

breach  after  part-performance 159,  160 

when  going  to  essence 162-167 

effect  of,  on  contract 160 

what  breaches  are  presumed  to  go  to  essence  162-167 

requisites  of  the  part-performance  ....  167 

when  not  going  to  essence 162-167 

effect  of,  on  contract 160 

no  riglit  to  commit  such  breach       ....  168 

effect  of  waiver  of 177 

what  constitutes 169 

no  difference  in  that  respect  between  concurrent 

conditions  and  conditions  precedent  ....  172 

avennents  of,  in  pleading 169 

in  sales  of  realty 170 

excuses  for  non-performance 171 

.where  promisor  pi-events  perfonnancG    ....  171 
18 


274  INDEX. 

PERFORMANCE   OF   CONDITIONS  —  Con^mucrf. 

how  far  equivalent  to  performance 176 

where  promisor  has  disabled  himself,  how  far  an 

excuse 171-174 

where  promisor  gives  notice  that  he  will  not  per- 
form    172 

does  not  apply  to  conditions  precedent     .     .  173 

where  co-operation  of  both  parties  is  required  .  174 

where  promise  is  divisible 40 

POLLICITATION, 

definition  of 1 

POST-OFFICE.     (See  Offeh;   Acceptance  of  Of- 
fer; Revocation  of  Offer.) 

not  the  agent  of  parties  contracting  by  letter.     .     .  15 
effect  of  miscarriage  of  offer  or  acceptance  sent  by  •  15,  151, 

152 
"        delays  "  "  "  "      15,  151,  152 

notice  consists  in  dejwsit  of  letter  in 6 

offer  through,  authorizes  acceptance  to  be  sent  by  .  15 

PROMISSORY  NOTES,    (^ee  Negotiable  Paper.) 

RATIFICATION.     (See  Relation.) 

of  agent's  acts,  relates  back 8 

RELATION.     (.S'ee  Acceptance  of  Offer.) 

legitimate  office  of  doctrine  of 7,  8 

in  enrolments  of  bargains  and  sales 8 

in  ratifications  of  agents'  acts 8 

in  memoranda  under  29  Car.  II.  c.  3     ...     .  8 

in  acceptances  of  offer, 

acceptance  does  not  relate  back  to  time  of  offer  .  7 

contrary  view  criticised 7-11 

Lord  Eldon's  dictum  in  Kennedy  v.  Lee      ...  9,  10 

in  contracts  for  allotment  of  shares 6 

title  to  shares  passes  on  notice  of  allotment     .     .  6 

relates  back  to  time  of  allotment 6 

in  promises  on  executed  consideration 92 

doctrine  of  relation  does  not  apply 69,  92 

history  of  erroneous  contrary  view      .     .     .     .  92,  93 


INDEX.  276 

RELEASES.     (.See  Accords.) 

of  debts,  good  consideration  for  promise  ....  87 

REVOCATION  OF  OFFER.    (5ee  Offer;  Accept- 
ANCE  OF  Offer.) 
may  be  at  any  time  before  acceptance  ....      4,  7,  178 

in  unilateral  contracts 7 

in  bilateral  contracts 178 

when  offer  does  not  state  time  to  remain  open    .     .  152 

remains  open  a  reasonable  time 152 

when  offer  states  time  to  remain  open 178 

may  still  be  revoked  at  any  time 178 

but  is  legally  presumed  to  remain  open  till  time 

expires 182 

offerer  has  burden  of  proving  revocation     .     .     .  182 

contrary  view  criticised 182 

Cooke  V.  Oxley  examined 182 

whei'e  there  is  agreement  not  to  revoke     ....  178 

agreement  requires  consideration 178 

equity  will  not  specifically  enforce 178 

does  not  make  offer  irrevocable 178 

criticism  of  contrary  view 178 

but  if  revoked,  offeree  may  sue 178 

mere  change  in  offerer's  mind  is  not     ....      149,  180 

change  must  be  communicated  to  offeree  ....  180 

criticism  of  contrary  view 180 

offers  to  sell  not  revoked  by  sale  to  another  per- 
son    181 

death  or  insanity  of  offerer  destroys  offer  ....  7,  180 

REWARDS   (OFFERS   OF).     {See  Offer.) 

performance  of  services  specified,  prima  facie  an  ac- 
ceptance of 3 

offeree  must  know  of,  when  he  performs  ....  3 
time  to  remain  open,  if  unspecified, 

reasonable  time,  if  for  prevention  of  crimes    .     .  155 
indefinitely,  if  for  punishment  of  a  crime  .     .     .  155 
may  be  accepted  by  officer  whose  duty  it  is  to  ar- 
rest        54 


276  INDEX. 

SALES  OF  PERSONALTY  (EXECUTORY).     (See 
Acceptance    of    Offer;    Revocation    of 
Offer.) 
implied  dependency  in, 

delivery  and  payment  mutually  dependent     134,  143,  164 
where  delivery  is  to  be  by  instalments  ....  128 

payment  for  one   instalment,    not  condition  of 

further  deliveries 128 

delivery  and  payment  for  each  instalment,  mu- 
tually dependent 137 

effect  of  failure  to  deliver  any  instalment    .     .  164 

Hoare  v.  Rennie  approved 164 

where  contract  is  by  bought  and  sold  notes  .     .  118 

offers  to  sell.      (See  Offer;   Revocation  of 

Offer.) 
binding  promise  to  sell,  without  counter-promise 

to  buy 179 

SATISFACTION.     (See  Release;  Accords.) 

UNILATERAL  CONTRACT.    (See  Bilateral  Con- 
tract.) 

what  it  is 106,  183 

every  binding  promise,   not  in   consideration    of 

another  promise,  is 185 

every  covenant,  not  given  in  exchange  for  another 

covenant,  is 185 

e.  g.  covenants  for  title 112 

so  is  tfvery  simple-contract  debt 112 

e.  g.  a  debt  created  by  a  part-performance  of  a 

bilateral  contract 128 

so  are  warranties  in  executed  sales  of  personalty      112,  119 

so  are  bonds,  policies  of  insurance,  and  promissory 

notes 33,  49-51,  107,  117,  119 

80  is  each  of  two  mutual  covenants,  if  contained  in 
two  separate  instruments  not  referring  to  each 
other 117 

so  are  covenants  or  promises  by  each  of  three  or 
more  parties  or  sets  of  parties  to  or  with  the 
others 186 


INDEX.  277 

UNILATERAL   CONTRACT—  Continued. 

a  bilateral  contract  becomes,  when  fully  performed 

on  one  side 183 

continuance  of  offer  in 155,  156 

acceptance  of  offer  in.     (See  Acceptance  of  Of- 
fer.) 
consideration  of.     (See  Consideration,  I.-VIII.  ; 
and  compare  §  81.) 

no  conditions  implied  by  law  in 105,  106 

conditions  precedent  implied  in  fact  in      .     .       32,  41,  150 

express  conditions  precedent  in 32-40 

concurrent  conditions  implied  in  fact  in    ...     .     20,  25 

express  concurrent  conditions  in 20,  22 

the  consideration  of,  when  and  how  it  may  be  a  con- 
dition   22,  27 

conditions  subsequent  in 42-44 

contracts  partly  unilateral 109-111 

WAIVER.     (5ee  Performance  of  Conditions.) 


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2 


ELEMENTS  OF  AMERICAN  JURISPRUDENCE 

By  William  C.  Kohixson,  LL.D.,  Dean  of  the  Law  Department  of 
the  Catholic  University  oi  America,  formerly  Professor  of  Law 
in  Yale  University;  author  of  "Elementary  Law,"  "Forensic 
Oratory,"  etc.     8vo.    Buckram.    S3. 00  net. 

Professor  Robinson's  "Elementary  American  Jurisprudence"  treats  of  the 
science  of  which  the  American  law,  as  such,  is  the  subject-matter.  To  under- 
stand that  law,  its  commands  and  prohibitions,  the  student  must  understand 
its  nature,  origin,  attributes,  purposes,  forms,  applications,  and  effects,  —  in  a 
word,  its  peculiar  jurisprudence,  as  Professor  Robinson  employs  the  phrase. 

"The  Elements  of  American  Jurisprudence,"  among  other  features,  pre- 
sents by  direct  reference  all  that  Markby,  Holland,  and  Austin  have  of  value 
bearing  on  our  jurisprudence,  rearranged  with  method,  the  subjects  and  topics 
following  in  a  logical  sequence. 

The  book  is  in  arrangement  somewhat  like  the  well-known  "  Elementary 
Law,"  each  topic  or  branch  being  tersely  discussed  in  a  paragraph  followed  by 
references  to  portions  of  the  text  of  other  authors,  and  citations  of  cases  to  be 
read  in  connection  ;  which  is  a  direct  advance,  making  the  book  especially 
adapted  to  the  teaching  of  law  by  tiie  study  of  cases. 

Three  classes  of   students  find  tiieir  needs  and  requirements  satisfied  bj'  it. 

First,  persons  who  care  to  know,  in  a  general  way  only,  the  nature  and 
effect  of  the  laws  under  which  they  live. 

Second,  the  classes  in  jurisprudence  in  the  universities.  To  these  the  cita- 
tions to  text  writers  afford  an  opportunity  for  deeper  reading  and  research. 

Third,  the  first  year  classes  in  Law  Schools.  To  them  the  book  will  be  of 
especial  importance,  as  the  knowledge  of  elementar}'  jurisprudence  makes  it 
possible  to  enter  upon  the  study  of  elementary  law  with  a  clear  understanding 
of  those  aspects  of  the  law  which  every  citizen  should  know,  and  every  law  stu- 
dent must  know,  to  get  the  full  advantage  of  his  technical  drill  in  the  law  school. 
To  the  student  pursuing  the  analytical  method  of  stuuy  by  cases,  this  book  will  be 
an  especial  aid  in  clearing  up  the  difficulties  besetting  the  first  half  year's  work. 

As  its  name  implies,  this  is  not  a  summary  of  American  law,  but  a  concise  statement 
of  the  principles  underlying  that  system.  —  Iowa  Law  BuUetin. 

Throughout,  we  find  the  same  method  of  marvellously  clear  and  accurate  statement, 
of  admirable  definition  and  orderly  arrangement.  —  Albany  Laic  Journal. 

A  most  valuable  addition  to  the  literature  of  our  country,  and  one  which  will  be  of 
almost  incalculable  value  to  young  law  students.  — American  Law  Register. 

Undoubtedly  one  of  the  best  books  for  reading  preparatory  to  the  study  of  law.  — 
Western  Reserve  Lav)  Journal. 

With  the  collateral  readings  cited,  the  most  helpful  first  book  now  available  for 
professional  students  of  law.  —  Prof.  James  F.  Colby,  of  Dartmouth  College. 

As  preliminary  reading,  Professor  Robinson's  latest  volume  will  prove  as  helpful 
to  the  prospective  law  student  as  has  his  "Elementary  Law"  to  the  student  already 
embarked  in  legal  study.  —  f'irginia  Law  Register. 

Tliis  is  in  every  way  an  admirable  book.  —  Green  Bag. 

Any  one  reading  law  would  find  it  one  of  the  most  useful  guides  on  the  general 
principles  of  law  which  he  could  obtain.  .  .  .  We  recommend  the  work  very  strongly 
to  students.  —  New  Jersey  Laic  Joiirnal. 

Will  prove  of  distinct  value  to  all  entering  upon  the  study  of  the  law.  —  Harvard 
Law  Review. 

He  has  given  just  enough  under  each  head  to  furnish  a  beginner  with  a  comprehen- 
sive idea  of  it  and  prepare  the  minds  of  young  law  students  for  their  more  difficult 
future  work.  —  American  Law  Register. 

3 


THE  LAW  OF  BILLS,  NOTES,  AND  CHEftUES 

By  Melville  Madison  Bioelow,  Vh.D.,  Harvard.  Second 
Edition.  Much  enlarged.  8vo.  Buckram.  $3.00  iiet ;  sbeep, 
$3.50  net. 

The  adoption  of  the  Negotiable  Instruments  Law  in  sixteen  States  has  made 
necessary  a  book  discussing  clearly,  fully,  and  within  reasonable  space  the  Law 
of  Commercial  Paper,  and  showing  the  meaning  of  the  Negotiable  Instruments 
Law  in  the  light  of  the  Common  Law. 

The  new  and  important  ruling  cases  have  been  freely  cited  in  the  present 
edition.  The  Negotiable  Instruments  Law  has  been  printed  in  full,  and  very 
full  references  are  given  from  Mr.  Bigelow's  text  to  the  different  sections  of  the 
law.     (Cited  n.  i.  l.) 

This  method  gives,  in  every  State  where  the  law  has  been  adopted,  an  analy- 
sis and  explanation  of  the  local  law  of  Negotiable  Instruments,  without  in  any 
way  detracting  from  the  merits  of  the  book  as  the  clearest  and  most  concise 
discussion  of  the  law  in  the  States  as  yet  having  no  codification  of  the  subject. 

Three  new  chapters,  on  the  General  Doctrine,  Certifier's  Contract,  and 
Vendor's  Contract,  treat  these  important  divisions  of  the  subject  with  great 
clearness  and  accuracy.  Many  other  chapters  have  been  rewritten  in  whole  or 
in  part,  and  the  book  is  presented  as  the  most  useful  and  complete  treatise  on 
the  subject. 

The  enlarged  size,  made  necessary'  by  the  addition  of  new  matter  and  the 
fuller  discussion  of  topics  treated  in  the  first  addition,  will  commend  the  second 
edition  to  teachers  and  lawj'ers. 

The  indented  statements  of  the  contents  of  sections  and  paragraphs  are 
great  aids  to  the  reader's  eye,  and  with  the  new  and  full  index  make  the  con- 
tents readily  accessible. 

It  would  be  difiBcult  to  overstate  tlie  claims  of  this  modest-sized  volume.  .  .  .  The 
author  had  thoroughly  mastered  his  subject  before  he  undertook  the  task  of  presenting 
it  to  the  public  in  this  form.  .  .  .  The  arrangement  of  topics  is  admirable  ;  the  thought 
is  clear  ;  the  statement  of  doctrines  is  accurate  ;  the  exposition  is  learned.  —  Columbia 
Law  lierieiv. 

It  needs  only  to  be  said  that  the  second  and  somewhat  enlarged  edition  contains  all 
the  excellencies  of  the  £ir.st,  with  many  improvements,  both  iu  text  and  mechanical 
form.  .  .  .  The  writer  of  this  review  having  used  Mr.  Bigelow's  first  edition  for  some 
years  as  a  text-book  in  the  classroom,  with  the  book  each  year  in  the  hands  of  one 
hundred  or  more  students,  can  testify  with  no  little  confidence  to  the  general  accuracy 
of  the  text  and  the  admirable  proportion  and  perspective  observed  in  the  author's 
plan.  Indeed,  in  a  very  considerable  .  .  .  experience  with  text-books,  on  various  sub- 
jects, for  the  use  of  students,  the  writer  has  found  none  quite  so  satisfactory  as  the 
volume  under  review. —  Virginin  Law  Register. 

Including,  as  it  now  does,  the  law  of  Bills  and  Notes  at  Common  Law  and  under 
the  Negotiable  Instruments  Law,  the  work  is  eminently  practical  and  useful  in  every 
State. — Albany  Law  Journal. 

It  is  a  model  book  for  a  student  of  law,  as  well  as  for  the  active  practitioner.  — 
New  Jersey  Law  Journal. 

Too  much  can  hardly  be  said  in  favor  of  this  edition.  It  furnishes  us  with  a  read- 
able and  yet  concise  treatment  of  an  extremely  technical  subject.  —  Harvard  Law 
Review. 

There  is  no  book  on  the  underlying  principles  of  the  law  of  Commercial 
Paper  more  reliable,  and  none  so  terse  and  clear. 


I 


CONFLICT  OF  LAWS 

Or,  Private  International  Law.  ^y  Ealeigh  C.  Minor,  M.A., 
B.L.,  Professor  of  Law  in  the  University  of  Virginia.  8vo. 
Buckram,  S3. 00  7iet :  slieep,  $3.50  net. 

The  need  of  a  book  treating  the  subject  of  the  conflict  of  laws  in  the  light 
of  the  later  decisions  is  manifest.  The  questions  considered  affect  the  property 
rights  and  business  interests  of  every  citizen,  whenever  those  rights  and  inter- 
ests are  affected  by  varying  decisions  of  the  courts  in  foreign  jurisdictions,  not 
only  national,  but  State. 

Every  question  involving  the  construction  and  application  of  a  contract,  the 
distribution  of  property  under  a  will,  or  from  an  intestate  estate,  the  control  of 
a  married  woman  over  her  property,  etc.,  in  a  foreign  jurisdiction,  State  or 
national,  may  be  a  question  of  the  conflict  of  laws.  These  questions  are  be- 
coming daily  more  frequent,  and  Mr.  Minor  discusses  them  carefully,  and  ia 
the  light  of  the  latest  decisions  and  the  fullest  research. 

One  may  predict  with  confidence  tliat  Mr.  Minor's  book  on  this  difficult,  Important, 
and  interesting  topic  will  meet  with  a  hearty  welcome  by  the  legal  profession.  .  .  .  The 
arrangement  presents  the  law  in  clear-cut  outlines,  and  the  idea  of  situs  has  served 
admirably  as  a  mode  of  classification.  —  Harvard  Law  Review. 

Mr.  Minor  has  been  successful  in  carrying  out  his  aim.  Such  questions  as  construc- 
tion and  application  of  the  contract,  the  distribution  of  property  under  the  will,  or  from 
au  intestate  estate,  the  control  of  a  married  woman  over  her  property,  etc.,  in  the  for- 
eign jurisdiction.  State  and  national,  have  been  treated  in  the  light  of  the  latest  deci- 
sions and  have  been  given  fullest  research  in  careful  discussions.  We  believe  the  book 
win  be  of  great  assistance  to  lawyers.  —  Chicago  Law  Journal. 

Every  page  of  the  book  gives  evidence  of  careful  study  and  mature  deliberation  ; 
and  it  will  no  doubt  be  of  great  value  to  tlie  student  and  to  the  practising  lawyer  as 
well.     The  book  is  timely  and  will  no  doubt  find  ready  sale.  —  Iowa  Law  Bulletin. 

There  are,  perhaps,  no  new  principles  in  law,  but  there  may  be  new  and  improved 
metliods  of  presenting  the  law  to  the  investigator  that  serve  to  facilitate  and  ex- 
pedite his  investigation,  and  the  author  seems  to  have  accomplished  this  most  desir- 
able result  in  this  admirable  treatise.  His  style  is  most  clear  and  concise,  —  he  has 
condensed  the  subject  into  the  smallest  possible  compass,  enabling  the  reader  in  a  few 
hours'  investigation  to  arrive  at  a  clear  understanding  of  almost  any  topic  embraced 
within  this  intricate  subject.  —  Central  Law  Journal. 

The  repult  is  that  the  book  conveys  to  the  reader  a  series  of  intelligible  general 
principles,  under  which  all  the  cited  cases,  with  but  few  exceptions,  may  be  grouped.  — 
American  Law  Register. 

The  author  has,  in  this  work,  made  a  really  important  contribution  to  the  law  upon 
a  subject  which,  while  often  of  the  utmost  importance  to  the  practitioner,  has  been 
heretofore  very  meagrely  and  unsatisfactorily  treated  ...  We  have  no  hesitation  in 
heartily  recommending  it  to  the  profession  as  a  very  carefully  considered  and  useful 
book.  — Albany  Law  Journal. 

Professor  Minor's  treatise  has  indisputable  merits.  It  is  based  on  an  unusually 
thorough  examination  and  analysis  of  the  American  decisions.  It  is  well  arranged,  and 
it  is  clearly  and  concisely  written.  There  is  a  refreshing  absence  of  "  straddle  ;  "  the 
author  does  not  attempt,  as  do  so  many  writers,  to  bring  conflicting  theories  into 
apparent  harmony  by  devising  a  formula  whicli  contains  everything  and  says  nothing. 
He  distinguishes,  compares,  makes  his  choice,  and  gives  his  reasons  for  making  it. 

The  author  is  at  his  best  in  his  analysis  of  the  various  problems.  Tn  his  treatment  of 
contracts,  for  example,  he  separates  questions  of  validity,  of  obligation,  of  interpreta- 
tion, and  of  discharge  ;  and  questions  of  validity  receive  a  further  subdivision.  The 
matter  of  assignment  of  debts  is  properly  treated  in  a  different  part  of  the  book,  under 
personal  property,  but  without  confusing  choses  in  action  with  tangible  movables.  — 
Columbia  Latv  Revieiv. 


THE  LAW  OF  TORTS 

By  Melville  Madisox  Bigelow.  Ph.D.,  Harvard.  Seventh 
Edition.  Revised  and  enlarged.  8vo.  Buckram,  $3.00  7iet ; 
sheep,  83.50  7iet. 

The  seventh  edition  of  "Bigelow  on  the  Law  of  Torts"  comes  from  the 
author's  iiands,  in  all  its  main  features,  as  he  wishes  it  to  remain,  and  includes 
useful  changes  of  classification  and  important  additions. 

Part  I.  is  now  entitled  Lawful  Acts  done  by  Wrongful  Means,  or  of  Malice; 
Part  IL,  Unlawful  Acts;  and  Part  IIL,  Events  caused  by  Negligence. 

Slander  of  Title  (the  action  for  making  false  and  disparaging  statements  in 
regard  to  property  of  any  liiud),  being  a  specific  tort  of  growing  importance,  is 
now  made  a  distinct  chapter. 

JLilicious  Literlerence  witli  Contract  liecomes  two  chapters,  under  the  heads: 
Maliciously  procuring  Refusal  to  Contract,  and  Procuring  Breacii  of  Contract. 

In  the  subject  of  Negligence  certain  gaps  have  been  tilled.  The  discussion 
is  now  completed  as  intended; 

The  whole  field  of  tort  is  now  covered,  in  general  theory,  and  the  work  is 
completed. 

The  book  is  now  in  octavo  form,  and  the  type  is  larger  and  more  distinct. 
Full-faced  indented  side  notes  have  been  added,  which  give  a  ready  insight 
into  the  subject-matter  of  the  page  at  a  glance. 

The  long  sections  of  the  previous  editions  have  been  judiciously  subdivided, 
and  the  409  octavo  pages  are  now  divided  into  817  consecutively  numbered 
paragraphs. 

AH  these  improvements,  in  what  is  in  a  way  the  mechanical  execution  of 
the  seventh  edition,  added  to  the  great  advances  in  the  fulness  of  the  discussion 
of  the  subject,  make  "  Bigelow's  Law  of  Torts"  more  than  ever  before  the 
ideal  book  on  the  Principles  of  Tort. 


Published  in  the  summer  of  1901,  in  style  similar  to  the  foregoing. 


THE  LAW  OF  SALES  OF  PERSONAL  PHOPERTY 

By  Francis  M.  Bi'kdick,  Dwight  Professor  of  Law  iu  Columbia  Uni- 
versity. Second  Edition,  revised.  8vo.  Buckram,  §3.00  »e^-  sheep, 
§3.50  net. 

This  is  a  new  edition,  in  fact.  To  the  many  suggestive  cases  on  different 
phases  of  the  subject  of  Sales  decided  since  the  first  edition  was  published, 
particular  attention  has  been  paid.  The  new  cases  on  well-fixed  rules  of  law 
have  been  studied  and  analyzed  with  great  care,  and  the  results  embodied  in  the 
text,  the  cases  from  which  the  results  were  obtained  being  freely  cited  in  the 
notes.  Some  topics  are  more  fully  treated  than  before,  as  the  author  saw  they 
needed  more  attention,  in  the  advances  in  the  law  and  in  the  experience  gained 
from  using  the  book.  Among  the  most  important  subjects  whicli  have  received 
fuller  treatment  are  "  Keservation  of  the  Right  of  Disposal,"  "  Conditions  and 
Warranties,"  and  "Interest  as  Damages."  On  '•  Conditions  and  Warranties" 
Professor  Burdick  contributed  an  article  to  the  Columbia  Law  Review  for  Feb- 
ruary, which  has  attracted  much  attention;  and  the  pith  of  that  article  is  to  be 

6 


found  in  the  chapter  given  to  that  branch  of  the  subject,  which  is  based,  not  on 
theory,  but  on  an  analysis  of  the  leading  cases  and  on  a  careful,  consistent  use 
of  the  terms,  "conditions"  and  "warranties."  On  some  doubtful  questions  dis- 
cussed in  the  earlier  edition,  cases  decided  in  thclast  few  years  have  thrown  effective 
light,  and  these  cases  are  carefully  studied  and  cited ;  notably  is  this  the  case  in 
discussing  the  question  of  the  "premature  repudiation  of  his  contract  by  the 
purchaser"  and  "all  that  purchasers  may  require." 

Passages  found  not  to  have  been  easily  understood  by  students,  from  under- 
statement or  obscuritv,  have  been  amplified  and  siniplitied,  until  the  book  now 
stands  as  nearh'  as  possible  a  complete  book  on  the  principles  of  the  Law  of 
Sales,  based  on  the  cases  which  have  developed  that  law. 


THE   LAW   OF   CONTRACTS 

By   Edward    A.   Harriman,   Professor  of  Law  in   the  Northwestern 

University  Law  School.     Second  Ildition.     8vo.     Revised.     Buckram, 

$3.00  Jiet;  sheep,  $3.50  net. 

In  this  edition  of  his  book  Mr.  Harriman  has  given  us  an  American  book  on 
Contracts,  treating,  as  have  not  been  treated  before,  those  developments  of  the 
law  which  are  peculiar  to  the  law  as  applied  in  the  various  jurisdictions  comprised 
within  the  United  States.  The  treatment  is  as  logical  and  systematic  as  possible. 
Recognizing  that  law  is  not  an  exact  science,  and  that  a  priori  generalizations 
may  be  unsound,  the  author  has  as  far  as  possible  combined  particular  rules  into 
a  general  theory.  These  rules  have,  however,  grown  up,  as  the  law  has  devel- 
oped, from  the  old  actions  of  debt  and  contract,  until  now  many  are  purely 
equitable  in  their  origin.  While  adhering  closely  to  the  decisions,  this  book 
gives  a  clear  and  intelligible  theory  of  contracts,  based  on  the  actual  history  of 
the  law.  This  theory  never  obscures  the  facts;  and  inconsistencies  in  the  posi- 
tive law  of  to-day  are  explained  by  historical  reasoning,  the  object  of  the  theory 
being  to  explain  satisfactorily  to  the  lawyer  of  the  United  States  the  reasons 
for  the  decisions  of  the  courts  to-day,  not  to  offer  fictitious  explanations  to 
satisfy  a  Continental  jurist. 

The  authorities  to  which  prominence  is  given  are  from  those  selected  by  men 
of  special  ability  as  of  the  most  value  in  explaining  the  development  and  pres- 
ent state  of  the  law.  Where  these  cases  have  been  printed  in  collections  of 
cases  or  "  Cases  Books,"  references  to  these  books,  as  well  as  to  the  original 
source,  are  given  in  the  notes. 

Citations  of  authorities  have  been  made  as  full  as  the  size  of  the  book  would 
permit,  special  attention  having  been  given  to  recent  cases  showing  the  latest 
developments  of  the  law  to  meet  the  changing  conditions  of  business.  Dupli- 
cate references  are  made  to  the  National  Reporter  System. 

The  present  edition  is  much  enlarged,  but  the  conciseness  of  statement  and 
clearness  of  reasoning  which  made  the  first  edition  so  well  known,  and  which 
are  so  essential  in  treating  a  subject  as  important  as  contracts  in  a  volume  of 
this  size,  have  not  been  sacrificed.  The  special  feature  of  Harriman  on  Con- 
tracts in  this  edition  is  the  full  treatment  of  those  departures  from  the  common 
law  now  become  permanent  parts  of  the  positive  law  in  so  many  American 
jurisdictions. 

Among  these  peculiar  American  doctrines  are,  that  "  a  deed  requires  accept- 
ance by  the  grantee ;  "  the  doctrine  of  "substantial  performance  of  conditions 
precedent  ;"  the  doctrine  that  a  "stranger  to  a  contract  made  for  his  benefit  may 


enforce  it  as  well  as  others."  Whatever  the  lopie  of  a  doctrine,  that  it  is  held 
by  tlie  courts  requires  recof^iiit ion  and  explanation;  and  sucii  recotjnition  and 
explanation  the  present  edition  of  this  book  gives  to  a  far  greater  degree 
than  usual,  except  in  the  large  text-book,  giving  a  digest  of  the  whole  law, 
good  and  bad. 

Among  ptiier  changes  from  the  first  edition,  it  will  be  noticed  that  the  very 
technical  and  philosophical  introduction  of  that  edition  now  far  more  properly 
appears  as  an  appendix  to  the  whole  discu>sion  of  the  subject. 


THE  LAW   OF   AGENCY 

By  Ernest  W.  Huffcut,  Professor  of  Law  in  Cornell  University  School 

of  Law.     Second  Edition.     Greatly  eulai-ged.     8vo.     Buckram,  $3.00 

net;  sheep,  $3.50  net. 

This  work  now  covers  the  whole  field  of  Agencj',  being  divided  into  two 
parts,  the  first  on  the  subject  of  Phincipal  and  Agent  and  the  second  on  the 
subject  of  Mastkk  and  Servant.  No  other  work  on  Agency  has  ever  covered 
the  law  of  Master  and  Servant  systematically,  one  of  the  leading  text-books  on 
the  subject  out  of  ten  hundred  and  tifty-two  sections  gives  but  about  fifty  to 
Master  and  Servant,  and  those  only  incidentally  to  the  discussion  of  Principal 
and  Agent. 

The  book  is  practically  new,  the  first  edition  being  rewritten  and  enlarged, 
and  the  discussion  of  the  law  of  Master  and  Servant  being  entirely  additional. 
Room  for  this  great  increase  without  making  the  book  of  an  awkward  shape  has 
been  obtained  by  the  change  of  size  from  a  12nio  to  an  8vo. 

In  the  opinion  of  competent  judges  who  have  seen  the  manuscript  there  is  no 
book  on  Agency  superior  to  this,  in  point  of  analj-sis  and  logical  and  systematic 
treatment,  for  the  student  or  for  the  practitioner  who  wishes  the  real  principles 
of  the  subject,  rather  than  a  digest  of  all  the  cases,  for  this  is  not  a  mere  collec- 
tion of  digest  extracts  but  a  carefully  considered,  well  reasoned  and  logically 
developed  treatise. 

The  citations  are  full  and  adequate,  while  not  exhaustive  in  the  sense  that 
they  assume  to  give  all  the  cases.  Especial  stress  is  laid  upon  leading  and  care- 
fully considered  cases. 

We  would  call  especial  attention  to  the  following  points  which  are  brought 
out  with  particular  clearness,  and  stated  in  terms  of  legal  import:  — 

The  distinction  between  an  ngent  and  a  stn-fuit. 

The  distinction  between  the  grounds  of  liability  of  Si  principal  for  the  acts  of 
an  agent  in  excess  of  authority  and  the  ground  of  liability  of  a  master  for  acts 
of  a  servant  in  excess  of  authority  is  discussed  with  clearness. 

Estoppel  in  its  relation  to  Agency  is  full}-  treated  and  its  applicability  to 
cases  of  fraud  and  deceit  (as  distinguished  from  other  torts)  is  shown. 

The  "fellow  servant  rule  "  is  fully  treated  and  the  tests  as  to  who  is  and  who 
is  not  a  "  vice  principal  "  are  clearly  stated  and  explained. 

In  its  new  and  enlarged  form  the  book  is  adapted  to  the  needs  of  law  schools 
requiring  a  text-book  for  classroom  work,  to  those  students  needing  a  book  on 
the  principles  of  the  law  of  Agency  for  use  with  case  study,  and  for  the  lawyer 
wishing  a  statement  of  the  law  of  jirincipal  and  agent  or  of  master  and  servant, 
with  references  to  the  cases  that  established  the  rule  of  law  and  to  the  recent 
cases  that  have  re-examined  and  applied  that  rule  and  very  possibly  widened 

its  field. 

8 


BEALE  ON  CRIMINAL  PLEADING 

The  Law  of  Criminal  Pleading.     By   Joseph   H.   Beale,   Jr.,   LL.B., 

Professor  of  Law  in  Harvard  University.     12mo.     Cloth,  $2.50  He/; 

sheep,  $3.00  net. 

Professor  Beale  treats  of  Criminal  Pleading  and  Procedure  in  this  volume 
clearly  and  at  sufficient  length  for  all  the  purposes  of  the  Law  School  and 
for  most  of  those  of  the  Law  Office. 

The  cases  cited  as  authorities  are  drawn  freely  from  the  various  States. 

A  condensed  but  extremely  accurate  statement  of  the  law,  useful  not  only  to  the 
student  for  whom  it  is  principally  intended,  but  to  the  practising  lawyer  as  well.  — 
loua  Law  Bulletin. 

It  embraces  the  whole  subject  of  Criminal  Procedure  and  Pleading  in  a  small  com- 
pass ;  the  condensation  has  been  made  with  great  skill  and  accuracy.  —  Yale  Law 
Journal. 

Offers  to  the  lawyer  a  work  which  contains  practically  all  that  is  of  value  to  him  in 
the  larger  works  on  the  subject,  and  to  the  student  a  text-book  which  is  a  marvel  of 
lucidity.  —  W.  E.  M.,  in  the  American  Law  Register. 


BIGELOW  ON  BILLS  AND  NOTES 

Elements  of  the  Law  of  Bills,  Notes,  and  Cheques.     By   Melville   M. 

BiGELOW,  Ph.D.    Second  Edition.    8vo.    Buckram,  |3.00  net ;  sheep, 

$3.50  net.     See  earlier  pages. 
Cases  on  the  Law  of  Bills,  Notes,  and  Cheques.      Edited   by   Melville 

M.  BiGELOw.     Crown  8vo.     Cloth,  §3.00  net. 


BIGELOW  ON  EQUITY 

Elements  of  Equity  for  the  Use  of  Students.  By  Melville  JL  Bigelow, 
Ph.D.,  lecturer  in  the  School  of  Law,  Boston  University,  author  of 
"  Elements  of  the  Law  of  Torts,"  etc.  12mo.  Cloth,  §2.50  net ;  law 
sheep,  $3.00  net. 

It  is  to  be  commended  for  its  clearness  and  conciseness  of  statement.  I  regard  the 
first  chapter  as  a  model.  The  doctrines  of  Tacking,  Subrogation,  and  Marshalling, 
found  in  Chapters  14,  19,  and  20,  are  more  easily  comprehended  than  in  any  other 
work  on  those  subjects  that  I  have  seen.  — Hon.  J.  H.  Carpenter,  Madison,  Wis. 


BIGELOW  ON  TORTS 

Elements  of  the  Law  of  Torts  for  the  Use  of  Students.  By  Melville  M. 
Bigelow,  Ph.D.,  author  of  "A  Treatise  on  the  Law  of  Estoppel," 
"A  Treatise  on  the  Law  of  Fraud,"  etc.  Seventh  edition,  revised 
and  enlarged.  8vo.  Buckram,  $3.00  ne/,-  sheep,  $3.50  ne<.  See  earlier 
pages. 

Cases  on  the  Law  of  Torts.  Edited  by  Melville  M.  Bigelow.  Crown  8vo. 
Cloth,  §3.00  net. 

BIGELOW'S  LAW  OF  WILLS 

The  Law  of  Wills.  For  Students.  By  Melville  M.  Bigelow,  Ph.D., 
author  of  "  Elements  of  the  Law  of  Torts,"  etc.,  editor  of  "Sixth  American 
Edition  of  Jarman  on  Wills,"  etc.  12mo.  Cloth,  $2.. 50  ne/;  sheep,  S.3. 00  nei. 
No  teacher  of  law  in  America  is  more  familiar  with  the  theory  of  the  Law  of 
Wills  than  Mr.  Bigelow,  and  students  everywhere  are  to  be  congratulated  on 

9 


the  publication  of  a  new  work  on  this  subject  bj'  an  author  so  experienced  and 

so  able. 

It  is  distinguished  for  its  clear  statement  of  the  law,  and  for  the  delightful  etyle  in 
which  it  is  written.  —  Dr.  John  Manning,  University  of  North  Carolina. 

The  present  volume  contains  a  masterly  exposition  of  the  Law  of  Wills,  arranged 
according  to  a  logical  and  scientific  conception  of  the  subject.  — Viryiniu  Ltiw  Register. 

A  good  text-book  for  students  on  Wills  has  been  supplied.  Mr.  Bigelow  here  com- 
bines the  results  of  his  experiences  in  teaching  with  his  researches  in  the  law  of  wills. 
His  book,  therefore,  is  accurate  and  clear.  —  i'dle  Law  Journal. 

No  course  of  study  of  law  is  complete  without  a  course  in  the  Law  of  Wills.  This 
work  of  Professor  Bigelow's  is  just  the  thing  to  present,  in  a  compact  and  interesting 
manner,  to  students  a  subject  so  important  and  so  interesting  in  itself. — American  Law 
Register. 

It  is  an  able  and  scholarly  treatise,  an  excellent  condensation  of  the  Law  of  Wills, 
and  admirably  adapted  for  the  use  of  students.  —  S.  S.  Cole,  Des  3Ioines,  la. 


BRYANT'S  CODE  PLEADING 

The  Principles  of  Code  Pleading  for  the  Use  of  Students.     By  Edwin  E. 

Bkyant,  Dean  of  the  Law  Department  of  the  State  University  of  Wisconsin, 

and  late  Assistant  Attorney-General  of  the  United  States.     Second  edition. 

12mo.     Cloth,  §2.50  net;  law  sheep,  $3.00  net. 

The  science  of  code  pleading  being  a  development  of  the  last  fifty  j'ears,  and 
getting  its  shape  and  form  gradually  from  the  decisions  of  the  courts  as  well  as 
from  the  enactments  of  the  law-making  bodies,  has  onh'  latelj'  been  carefully 
treated  by  text  writers. 

Many  instructors  feel  that  too  much  time  is  needed  for  the  student  to  get  the 
elementary  principles  from  the  larger  treatises  ;  and  this  book  is  written  to 
bring  within  easy  reach,  in  condensed  and  clear  form,  the  true  elements  of  the 
subject  ;  to  give  the  student  sufficient  knowledge  of  the  old  common  law  plead- 
ing for  a  foundation  for  the  less  formal,  but  not  necessarily  less  exact,  pleading 
under  the  code,  and  to  put  in  orderly  array  the  principles  of  this  branch  of  the 
law,  which  have  too  frequently  been  considered,  by  students,  at  least,  as  of 
little  importance. 

It  fills  its  field  admirably.  —  Western  Reserve  Law  Journal. 

It  points  out  clearly  the  changes  the  Codes  have  made  in  the  common  law  system  of 
pleadings.  — Harvard  Law  Review. 

Tlie  principles  are  presented  in  a  clear,  satisfactory  manner,  and  the  Code  References 
are  a  valuable  addition.  In  short,  it  exactly  supplies  a  want  as  a  text-book  for  students, 
whether  in  ofllces  or  law  schools,  wherever  the  reformed  procedure  prevails  or  is 
largest.  —  Charles  M.  Campbell,  Larv  Department  Colorado  State  University. 


BURDICK  ON  PARTNERSHIP 

The  Law  of  Partnership,  including  Limited  Partnerships.    By  Francis  M. 

BuKDiCK,    Dwight    Professor    of    Law    in    Columbia    University.      12mo. 

Cloth,  $2.50  net;  sheep,  $3.00  net. 

Professor  Burdick  discusses  the  principles  of  Partnership  Law  with  especial 
view  to  the  needs  of  students  as  these  have  revealed  themselves  to  him  in  his 
experience  with  his  classes.  The  many  teachers  and  students  who  have  used 
the  book  unite  in  its  praise,  for  concise  statement  of  the  law,  accurate  citation  of 
the  authorities,  and  clear  reasoning. 

Practising  lawyers  find  in  it  a  full  resume  of  the  subject,  dwelling  especially 
on  the  points  on  which  rest  the  real  framework  of  partnership  law. 

Professor  Burdick  has  not  written  his  book  and  used  his  space  to  establish 

10 


any  one  of  the  three  theories  of  partnership,  but  has  stated  the  different  views 
concisely  and  clearly,  and  his  book  is  a  most  valuable  addition  to  the  law  of  the 
subject. 

Professor  Burdick's  book  is  the  ouly  short  An:_rican  work  on  the  subject,  and  it  is 
a  pleasure  to  find  it  so  admirably  adapted  to  the  purpose  for  which  it  was  written.  — 
Harvard  Law  Review. 

Tou  lay  before  him  [the  student]  in  a  very  plain  and  attractive  form  all  the  essential 
elements  or  principles  of  the  law  of  partnership  without  confusing  and  discouraging 
him  by  a  vast  number  of  details.  You  have  simplified  liis  work  and  made  it  as  easy  as  it 
can  be  made. — Extract  from  a  letter  of  Judge  Ieving  G.  Vann,  Seiv  York  Court  0/ 
Appeals. 

The  book  is  the  best  of  its  kind.  ...  A  student  could  not  ask  for  an3i;hing  better 
for  his  purpose.  — C.  \V.  Pound,  Professor  Cornell  College  of  Law. 

The  Board  of  Examiners  for  admission  to  the  bar  of  the  Scranton  (Pa.)  Judicial 
District  were  unanimous  in  making  it  a  required  text-book  on  Partnership.  —  J.  M. 
Habbis,  Chairman. 

To  accompany  the  above  :  — 
Selected  Cases  on  the  Law  of  Partnership,  including  Limited  Partnerships 

By  F.  M.  BuKDiCK.     8vo.     Cloth,  $■1.50  net. 


BURDICK   ON  SALES 

The  Law  of  Sales  of  Personal  Property.  By  Fkancis  M.  Burdick, 
Dwight  Professor  of  Law  in  Columbia  University.  Second  edition,  revised 
and  enlarged.  8vo.  Buckram,  f ii  00  net;  sheep,  $3.50  net.  See  earlier 
pages. 

Selected  Cases  on  the  Law  of  Sales  of  Personal  Property.  By  Fkancis  M. 
BuKDiCK.     Second  edition.     8vo.     Cloth,  $-1.50  net. 


COOLEY  ON  CONSTITUTIONAL  LAW 

The  General  Principles  of  Constitutional  Law  in  the  United  States  of 
America.  By  Thomas  M.  Cooley,  author  of  "A  Treatise  on  Constitu- 
tional Limitations,"  etc.  Third  edition,  by  A.  C.  McLaughlin,  of  the 
University  of  Michigan.  12mo.  Cloth,  ^2.50  net ;  law  .sheep,  $3.00  net. 
No  students'  book  is  better  known  or  more  widely  used  than  Judge  Cooley's 
admirable  exposition  of  the  principles  of  Constitutional  Law  in  the  United 
States. 

In  the  new  edition  large  additions  have  been  made,  and  the  topics  suggested 
by  the  increasing  number  of  points  of  contact  and  interference  between  State 
and  Federal  Constitutions  are  particularly  amplified. 

Since  the  last  edition  appeared,  the  Supreme  Court  has  passed  for  the  first 
time  on  the  citizenship  of  a  Chinaman  born  of  alien  parents  in  this  country,  on 
the  constitutionality  of  eight-hour  laws,  etc.,  while  the  decisions  affecting  the 
control  of  interstate  commerce  have  been  highly  important. 

Author  and  editor  have  avoided  equal Iv  the  dangers  of  becoming  too  theo- 
retical and  of  compiling  a  mere  digest  of  decisions.  The  principles  and  deduc- 
tions stated  are  necessarily  condensed,  but  there  are  always  suflScient  references 
m  the  footnotes  to  enable  the  student  to  test  anj'  principle  by  the  cases. 

An  admirable  presentation  of  a  deep  and  extensive  subject.  —  Western  Reserve  Law 
Journal. 

Its  simple  but  perfect  and  logical  arrangement,  and  clear  and  concise  treatment  of 
subjects,  with  the  citations  of  the  leading  decisions  for  the  support  of  the  text,  make 
it  the  best  and  most  complete  hand-book  for  the  use  of  students  on  the  subject  of 
Constitutional  Law  of  which  I  have  any  knowledge.  —  Hon.  R.  H.  Alvet,  Court  of 
Appeals  of  the  District  of  Columbia. 

To  accompany  the  above: — 
A  Selection  of  Cases  on  Constitutional  Law.    By  Emlin  McClain.    8vo. 
Cloth,  $4.50  net. 

11 


CURTIS  ON  UNITED  STATES  COURTS 

Jurisdiction,  Practice,  and  Peculiar  Jurisprudence  of  the  Courts  of  the 
United  States.  L5y  Bknjajiin  K.  Cuktis,  LL.D.,  late  Associate  Justice  of 
the  Supreme  Court  of  the  United  States.  Edited  by  George  Ticknor 
Cumis  and  Benjamin  K.  Curtis.  Second  edition,  by  H.  C-  Mekwin,  Law 
Department  of  Boston  University.  12mo.  Cloth,  $2.50  ntt ;  law  sheep, 
$3.00  ntl. 

These  lectures  were  delivered  by  the  late  Judge  Curtis  to  a  class  of  students 
in  the  Harvard  Law  Sciiool,  and  were  edited  and  prepared  for  the  press  by  his 
son  and  brother,  both  lawyers  of  prominence.  Mr.  Merwin  has  devoted  much 
time  to  the  consideration  of  the  recent  developments  in  the  practice  of  the  Federal 
Courts;  and  his  additions,  in  the  second  edition,  deserve  the  words  of  com- 
mendation bestowed  upon  Judge  Curtis's  original  text. 

A  work  of  the  highest  standard  ou  the  subject  treated.  —  Boston  Post. 
All  lovers  of  an  able  aud  well-written  law  book  should  be  grateful  to  Mr.  Merwin,  by 
whose  etforts  this  work  of  standard  legal  and  literary  value  has  been  given  a  renewed 
teriu  of  usefulness.  —  American  Law  Register  and  Keview. 

No  other  book  for  students  on  United  States'  Courts  is  equal  to  the  second  edition  of 
Curtis.  —  Prof.  C.  W.  Pound,  Cornell  College  of  Law. 

It  is  by  far  the  best  epitome  of  that  extensive  subject ;  and  the  clearness  of  the  style 
and  orderly  arrangement  will  especially  recommend  it  to  students.  —  Hon.  Edmund  H. 
Bennett,  late  Dean  of  School  of  Law,  Boston  University. 
A  model  of  what  such  a  book  should  be.  —  TKe  Nation. 


EWELL'S  MEDICAL  JURISPRUDENCE 

A  Manual  of  Medical  Jurisprudence  for  the  Use  of  Students  at  Law  and  of 

Medicine.     By  Mak.shall  D.  Ewell,  M.D.,  LL.D.,  of  the  I'nion  College 

of  Law,  Chicago.     12mo,     Cloth,  $2.50  ne<;   law  sheep,  $3.00  7ie^ 

Mr.  Ewell  has  produced  a  work  which,  toithin  a  moderate  compass,  states  all 

the  leading  facts  arid  principles  of  the  science  concisely  and  ^-et  clearly.     In  it 

will  be  found  the  substance  of  all  the  principles  stated  in  the  more  voluminous 

and  expensive  ivories. 

It  is  excellently  done.  I  \vi8h  it  might  be  read  by  every  student  of  law  as  well  as 
by  every  student  of  medicine.  —  Prof.  Henky  Wade  Rogers,  when  at  University  of 
Michigan. 

I  can  safely  say  that  for  use  as  a  text-book,  either  in  a  medical  college  or  law  school, 
it  is  preferable  to  any  book  of  my  acquaintance.  In  his  chapter  on  Malpractice,  Pro- 
fessor Ewell  has  succeeded,  within  the  compass  of  eighteen  pages,  in  setting  forth  the 
general  doctrine  of  the  law  so  comprehensively  as  to  make  it  highly  useful  for  the 
practitioner  as  well  as  the  student.  —  Henry  H.  Inobrsoll,  Dean  Law  Department  Uni- 
versity of  Tennessee. 

HARRIMAN   ON   CONTRACTS 

Elements  of  the  Law  of  Contracts.  By  Edward  Avery  Harriman. 
Professor  of  Law  in  the  Northwestern  University  Law  School.  Second 
edition,  revised  and  enlarged  8vo.  Buckram,  $3.00  ne< ;  sheep,  $3.50  «e<. 
See  earlier  pages.  

HEARD  ON  CIVIL  PLEADING 

The  Principles  of  Pleading  in  Civil  Actions.     By  Franklin  Fiske  Heard. 

12ino.     Cloth,  S2..50  net;  law  sheep,  $3.00  7iet. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design  to  practise, 
he  will  find  it  equally  necessary  to  become  familiar  with  tlie  principles  of  common  law 
pleading.  Mr.  Heard's  work  is  a  plain  and  clear  guide  to  these. —Hon.  Simbon  E. 
Baldwin,  Law  Department  of  Yale  Conege. 

12 


HOWE  ON  THE  CIVIL  LAW 

studies  in  the  Civil  Law  and  its  Relations  to  the  Law  of  England  and 
America.     By  William  Wikt  Howe,  late  Justice  of  the  Supreme  Court  of 
Louisiana.     12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 
The  book  differs  in  plan  from  the  merelj'  antiquarian  and  academic  treatises 
on  Roman  and  Civil  Law.     The  author  has  studied  and  practised  his  profession 
both  in  the  common  law  States  of  Missouri  and  New  York  and  in  tiie  civil  law 
State  of  Louisiana,  and  has  written  this  book  in  the  light  of  large  experience. 
The  special  feature  of  the  work  is  found  in  the  presentation  of  the  leading  princi- 
ples of  the  Roman  and  Civil  Law  and  the  tracing  of  their  development  and 
application  in  our  own  jurisprudence  to  the  complications  of  modern  life,  thus 
taking  up  the  comparative  study  of  the  Civil  Law  and  of  the  Law  as  we  have  it 
in  America.     The  book  will  be  of  practical  use,  in  our  numerous  law  schools, 
and  to  those  members  of  the  bar  who  may  wish  to  investigate  the  subject. 

The  work  is  excellent.  .  .  .  You  have  gone  to  the  bottom  of  your  subject.  —  Henry 
Denis,  Professor  of  Ciril  Law,  Tulane  University. 

Has  every  quality  wliich  such  a  book  needs,  and  which,  to  say  the  least,  most  books 
on  Roman  Law  in  English  have  not.  It  is  simple,  clear,  and  intelligible,  and  we  can 
strongly  recommend  it  to  the  student,  or  to  any  one  interested  in  the  subject.  —  The 
Nation. 


HUFFCUT  ON  AGENCY 

Elements  of  the  Law  of  Agency  as  relating  to  Contract.  By  Eunest  W. 
HuFFCUT,  Professor  of  Law  in  Cornell  University  School  of  Law.  Second 
edition,  revised  and  enlarged.  8vo.  Buckram,  $3.00  Me<;  sheep,  $3.50  ?ie<. 
See  earlier  pages. 

Cases  on  the  Law  of  Agency.  By  Ernest  W.  Huffcut.  Crown  8vo. 
Cloth,  $3.00  net. 


MAY  ON  CRIMINAL  LAW 

The  Law  of  Crimes.  By  J.  Wilder  IMay,  Chief  Justice  of  the  Municipal 
Court  of  the  City  of  Boston.  Second  edition,  edited  by  Joseph  Henry 
Beale,  Jr.,  Professor  of  Law  in  Harvard  Universitv.  12mo.  Cloth, 
$2.50  net ;  law  sheep,  $3.00  net. 

This  new  edition  of  Judge  May's  deservedly  popular  work  contains  large 
additions.  The  original  plan  included  no  discussion  of  the  subjects  of  Criminal 
Pleading  and  Practice;  but  it  was  found  that  it  was  better  adapted  to  the  use  of 
students  if  these  subjects  were  briefly  considered,  and  this  has  accordingly  been 
done.  Much  has  also  been  added  to  the  first  chapter,  which  contains  the  general 
principles  underlying  tlie  criminal  law. 

It  is  to  be  especially  commended  for  its  clear  and  concise  definitions,  as  also  for  its 
citations  of  leading  cases  directly  upon  the  matter  under  discussion.  —  From  J.  H. 
Carpenter,  Laiv  Faculty,  University  of  Wisconsin. 

It  is  a  very  compact  manual,  and  the  contributions  of  Mr.  Beale  add  to  its  value 
in  many  important  particulars. —  J.  B.  Moore,  when  Professor  of  Criminal  Law  in 
Columbia  University. 

The  text  is  clear,  simple,  yet  exact,  the  references  unusually  good,  and  the  method 
and  order  excellent. '  It  is  the  best  work  I  have  yet  seen  for  the  student's  use  and  upon 
which  to  base  lectures  upon  Criminal  Law.  —CO.  Bishop,  Professor  of  Criminal  Law, 
St.  Louis  Laiv  School. 

It  is  not  a  mere  synopsis,  but  an  interesting  discussion,  quite  full  enough  to  give  the 

13 


student  a  true  view  of  the  subject,  and  minute  enough  to  be  a  useful  handbook  to  the 
practitioner.  —  Neiv  York  Laic  Journal. 

To  accompany  "May's  Criminal  Law": — 
Cases    on    Criminal    Law.     By  H.   W.   Chapun.    New  edition,  enlarged. 
Crown  8vo.     Cloth,  $3.00  ntt- 

ROBINSON'S  ELEMENTARY   LAW 

Elementary  Law.  By  William  C.  Robinson,  LL.D.,  Professor  of  Elemen- 
tary Law  in  Yale  College,  autiior  of  ''  Elements  of  American  Jurisprudence," 
etc.     12mo.     Cloth,  $2.50  net;  law  sheep,  ^3.00  net. 

Contains  a  statement  of  the  principles,  rules,  and  definitions  of  American 
Common  Law,  both  civil  and  criminal,  arranged  in  logical  order,  with  references 
to  treatises  in  which  such  definitions,  rules,  and  principles  are  more  extensively 
discussed. 

This  work  is  intended  to  serve  three  purposes  :  First,  to  form  a  text-book  for 
the  use  of  students  in  law  schools,  and  of  others  who  are  under  competent 
instruction;  second,  to  guide  private  students  in  their  investigation  of  the  rules 
and  definitions  of  law;  third,  to  render  students  familiar  with  some  of  the  lead- 
ing treatises  upon  the  principal  topics  of  the  law. 

The  book  is  convenient  to  the  instructor  who  will  use  it  as  a  text  to  be  amplified  in 
his  lectures,  and  valuable  to  the  student  who  will  consult  the  references.  — Prof.  M.  F. 
FoRCB,  LL.D.,  ivhen  at  the  Cincinnati  Law  School. 

Will  prove  an  invaluable  aid  to  students  just  beginning  their  Legal  atudles.  — Ameri- 
can Law  Review. 

ROBINSON'S  "FORENSIC  ORATORY 

Forensic  Oratory:  A  Manual  for  Advocates.    By  William  C.  Robinson, 

LL.  D.,  author   of  "Elements   of   American    Jurisprudence,"    ''  Elementary 

Law,"  etc.     12mo.     Cloth,  $2.50  7iet;  law  sheep,  $3.00  net. 

A  new  and  suggestive  work  on  the  duties  and  functions  of  the  advocate. 
The  chapters  on  the  Presentation  of  Ideas  by  the  Production  of  Evidence  in 
Court,  the  Qualification  and  Training  of  Witnesses,  and  on  Direct,  Cross,  and 
Re-Direct  Examination,  commend  the  book  especially  to  the  bar  as  well  as  to 
students. 

The  trained  lawyer  as  well  as  the  student  will  find  much  that  is  helpful  and 
suggestive  in  the  pages  of  this  volume,  especially  on  the  subject  of  cross  exami- 
nation. It  is  the  result  of  a  long  experience  and  a  constant  study  of  the  trial  of 
causes. 

This  is  a  book  which  no  student  of  law  can  afford  to  pass  by  without  a  thorough  study 
of  it.  It  is  also  a  work  which  no  practising  lawyer  who  luidertakes  the  trial  of  causes, 
and  is  not  already  an  acknowledged  leader  in  the  courts,  can  afford  not  to  read  and  read 
again.  — American  Laxo  Revieiv. 

It  touches  \ipon  vital  points,  just  such  as  students  of  oratory,  especially  those  who 
are  entering  upon  the  practice  of  law,  need  to  have  urged  upon  them  in  this  forcible 
way.  —Thomas  U.  Trueblood,  Professor  of  Eloculioti  unit  Oratory,  Department  of  Law, 
Michigan  University. 

A  very  useful  book,  most  complete  in  its  way.  —  American  Law  Register, 

Tlie  most  important  work  we  have  upon  Forensic  Oratory  or  the  conduct  of  causes 
before  juries  and  before  courts.  — American  Law  Reiieic. 


SEDGWICK'S  ELEMENTS  OF  DAMAGES 

Elements  of  Damages:  A  Handbook  for  the  Use  of  Students  and  Prac- 
titioners.     By   Akthuk  G.  Sedgwick..      12mo.      Cloth,    $2.50    net;   law 
.sheep,  $3.00  net. 
This  book  is  not  an  abridgment  of  the  work  embodied  by  the  author  in  his 

edition  of  the  well-known  three-volume  treatise  on  the  Measure  of  Damages,  by 

14 


Theodore  Sedgwick.  The  entire  field  has  been  re-examined,  and  the  whole  law  of 
Damages  reviewed.  Its  principles  are  stated  in  the  form  of  rules  or  propositions 
of  law  such  as  a  court  might  lay  down  to  a  jury,  and  these  propositions  are  illus- 
trated by  the  cases  from  which  they  have  be^n  drawn.  Wherever  local  vari- 
ations from  these  rules  exist,  such  local  differences  are  stated,  and  their  causes, 
so  far  as  possible,  explained. 

As  a  students'  book  it  is  very  admirable.  Probably  no  one  but  the  author  can  see 
how  it  could  be  made  better  than  it  is.  —  American  Law  Review. 

I  can  cheerfully  recommend  the  book  as  an  excellent  presentation  of  the  elements 
of  the  subject.  —  Emlin  McClain,  Iowa  Supreme  Court,  late  Chancellor  Law  Depart- 
vient,  State   University  of  Iowa. 

The  law  of  damages  in  a  form  at  once  lucid  to  the  student  and  convenient  to  the 
busy  practitioner.  —  B.  J.  Ramage,  University  of  the  Sotith. 

A  valuable  addition  to  students'  law  work.  —  J.  A.  Green,  Dean  Law  Departmenti 
University  of  Kansas. 

I  think  he  has  solved  the  problem  of  an  elementary  book  which  is  clear  without 
being  superficial.  —  Prof.  J.  H.  Beale,  Harvard  Law  School. 

Throughout  the  volume  the  references  to,  as  well  as  the  illustration  of,  underlying 
principles  are  judicious.  It  is  decidedly  a  meritorious  work.  —  Prof.  Charles  M. 
Campbell,  Law  Department,  University  of  Colorado. 

Clear,  concise,  and  thorough.  —  Yale  Law  Journal. 

To  accompany  the  foregoing  loork:  — 

Cases  on  the  Law  of  Damages.     By  Joseph  H.  Beale,  Jr.,  of  the  Harvard 
Law  School.     Crown  8vo.     Cloth,  $3.00  net. 


STEPHEN'S   DIGEST  OF  EVIDENCE 

A  Digest  of  the  Law  of  Evidence.  By  Sir  James  Fitz-James  Stephex. 
From  the  fourth  English  edition.  With  Notes  and  Additional  Illustrations 
to  the  present  time,  chiefly  from  American  Cases.  12nio.  Cloth,  $2.50  net; 
law  sheep,  $3.00  net. 

A  full  reprint  of  the  fourth  English  edition,  revised  by  the  author,  with 
references  to  American  cases. 

Short  as  it  is,  we  believe  it  will  be  found  to  contain  practically  the  whole  law 
of  the  subject. 


STIMSON'S  LAW  GLOSSARY 

Glossary  of  Technical  Terms,  Phrases,  and  Maxims  of  the  Common  Law. 
By  Fkedekick  Jesup  Stimso.n.  12mo.  Cloth,  $2.50  net;  law  sheep, 
.'ga.OO  net. 

This  book  is  a  concise  Law  Dictionary,  giving  in  common  English  an  expla- 
nation of  the  words  and  phrases,  English  as  well  as  Saxon,  Latin,  or  French, 
which  are  of  common  technical  use  in  the  law.  The  popular  and  usual  accepta- 
tion of  each  phrase  is  given  in  much  the  same  general  shape  as  it  stands  in  the 
mind  of  the  trained  lawyer. 

There  is  no  other  book  in  print,  no  matter  what  its  cost,  which  puts  within 
reach  of  the  student  the  definitions  he  wants,  in  a  clearer  fashion. 

A  very  convenient  little  work,  especially  useful  to  students  of  the  law.  —  Chicago 
Legal  News. 

15 


WAMBAUGH'S  STUDY  OF  CASES 

The  Study  of  Cases :  A  Course  of  Instruction  in  Reading  and  Stating 
Reported  Cases,  Composing  Head-Notes  and  Briefs,  Criticising  and 
Comparing  Authorities,  and  Compiling  Digests.  By  Eugenk  Wam- 
BAUGH,  Professor  in  the  Law  Department  of  Harvard  Universit3'.  Second 
edition.     12nio.     Cloth,  $2.50  net;  law  sheep,  $;5.00  net. 

The  purpose  of  the  work  as  expressed  by  its  author  is  "  to  teach  the  methods 
by  which  lawyers  detect  dicta,  and  determine  the  weight  of  reported  cases." 
The  full  discussion  of  this  introduces  many  important  and  interesting  topics, 
such  as  tlie  following  :  How  to  write  a  Head-Note,  How  to  criticise  Cases,  Com- 
bining and  Pre])aring  Cases,  The  Growth  of  Legal  Doctrine,  The  Lnportance  of 
the  Unwritten  Law,  The  Respect  for  Authority,  The  Preparation  of  Hriefs,  How 
to  compose  a  Digest,  etc. 

A  subject  of  tlie  greatest  importance  to  legal  practitioners,  and  one  which,  strange 
to  say,  has  never  before  engaged  the  attention  of  any  of  our  legal  writers.  We  know  of 
no  work  of  greater  importance  to  the  student.  It  should  be  adopted  as  a  textbook  by 
every  law  school  in  the  country.  —  The  Green  Bug. 

We  commend  this  book,  not  merely  to  students  of  the  law,  but  to  practising  lawyers, 
and  even  to  judges  on  the  bench.  It  incidently  teaches  how  to  write  a  decision,  as  well 
as  how  to  find  out  the  doctrine  of  a  decision  after  it  is  written.  —  The  American  Law 
Review. 

Altogether  unique  in  the  way  of  legal  literature.  There  are  very  many  lawyers  old 
in  the  practice  who  will  regret  that  they  were  not  afforded  in  tlieir  student  days  such 
discipline  as  is  suggested  by  this  book  ;  and  there  is  no  lawyer  who  cannot  read  with 
profit  its  first  eight  chapters.  —  The  Chicago  Law  Journal. 

Among  the  most  valuable  publications  for  the  use  of  students  which  have  appeared 
in  recent  years.  The  work  abounds  in  fertile  suggestions.  — The  A  merican  Law  Register 
and  Review. 

It  is  a  valuable  addition  to  the  Law  Students'  Series.  —  E.  H.  Bennett,  late  Dean 
School  of  Law,  Boston  University. 

By  the  same  author,  to  accompany  "  The  Study  of  Cases  "  :  — 
Cases  for  Analysis.     By  Euuexe  Wambaugh.     Professor  in  the  Law  De- 
partment of  Harvard  University.     Crown  8vo.     Cloth,  $3.00  net. 


Little,  Brown,  &  Company  publish  many  other  works  particularly  adapted 
for  the  use  of  students.  Among  tliem  may  be  mentioned  :  Kent's  Commentaries 
on  American  Law;  Walker's  Introduction  to  American  Law;  Dwight's  Law  of 
Persons  and  Personal  Property;  Greenleaf  on  Evidence;  Parsons  on  Contracts; 
Washburn  on  Real  Property:  Scliouler  on  Personal  Property,  on  Bailments, 
and  on  Domestic  Relations  ;  Story  on  Equity  Pleading,  and  on  the  Constitution; 
etc.,  etc.     Catalogues  on  application. 


LITTLE,    BROWN,     &    COMPANY 

PUBLISHERS 
254  Washington  Street,  Boston 


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